Hamann v. Milwaukee Bridge Co.

• Decision Date: 20 March 1906
• Citation: 127 Wis. 550,106 N.W. 1081
• Parties: HAMANN v. MILWAUKEE BRIDGE CO.
• Court: Wisconsin Supreme Court

127 Wis. 550

106 N.W. 1081

HAMANN

v.MILWAUKEE BRIDGE CO.

Supreme Court of Wisconsin.

March 20, 1906.

Appeal from Superior Court, Milwaukee County; J. C. Ludwig, Judge.

Action by Lizzie Hamann, as administratrix of John Hamann, deceased, against the Milwaukee Bridge Company. From a judgment for plaintiff, defendant appeals. Reversed.

Action to recover for a personal injury.

Plaintiff's claim was this: October 7, 1903, the intestate, a common laborer, and to defendants so known, was in the latter's employ with other such laborers under the direction of Meyers, a foreman, performing the service of removing from a railway freight car to the floor of plaintiff's factory a punch machine, weighing some 13,000 pounds, and placing the same on the floor of such factory. The machine was wholly of iron, seven feet long and six feet high. Portions thereof were a fly wheel weighing about a ton and a geared wheel weighing several hundred pounds, set in a line with the seven foot base, which was 30 inches wide for about 8 inches at each end, and between those points 14 inches wide. A person, familiar with handling such a heavy and peculiarly shaped article, was required, in order to take the same from the car without danger to unskilled assistants. Defendant, well knowing that, employed said Meyers to superintend the work, who was known to be incompetent therefor. By aid of his assistants he caused a skidway, 18 feet long, to be constructed, reaching from the doorway of the car to the floor of the factory. It was composed of 12 by 9 inch timbers placed parallel to each other and about 15 inches apart, fastened at both ends and blocked under the center. The crew placed the machine on the skidway by mechanical means, and put rollers thereunder. A rope was attached to the body thereof and to the car so as to control the motion of the same as it proceeded down the skidway. When everything was in readiness for the machine to so move, the foreman took a position in front thereof on the west side of the skidway, and the deceased, by direction, took a corresponding position on the east side. Another person was located behind the machine, to pick up rollers as they were released by the forward motion, and pass them to the persons in front whose duty it was to receive and place them before the machine, and guide them till firmly engaged thereby. The form of the machine was such that, except, when the rollers were near the outer ends of the base, the bearing thereon was only about 14 inches wide, and when all rollers were so circumstanced the weight of the machine was so distributed that the center of gravity was on a line perpendicular with a point outside the base. That fact was unknown to the deceased, and not apparent to an ordinary workman. It occurred during the progress of the work that the machine rested wholly on rollers located under the narrow part of the base, when by reason of the facts aforesaid it naturally tipped sideways and in the direction of plaintiff's intestate. Before he could, in the exercise of ordinary care, escape from the danger he was caught thereby and killed.

There were other allegations as to the existence of a statutory beneficiary, giving rise to a complete cause of action in case of the defendant being liable for the death, and allegations showing performance of all conditions precedent, to the prosecution thereof.

Two causes of action were stated, one being predicated on negligence in putting an incompetent man in charge of the work, and in failing to warn the deceased of the danger because of the center of gravity of the machine falling outside of the narrow part of the base, and in moving the machine in an improper way and by an improper plan; and the other substantially thereon except that element regarding employment of an incompetent foreman.

The defendant put in issue the allegations of negligence, denied that a perpendicular line downward from the center of gravity fell outside the narrow base, and alleged that the length of the machine was 5 feet instead of 7 feet; its width at the narrow part of the base to be 17 instead of 14 inches; the weight of the fly-wheel to be one-half that alleged; the center of gravity of the machine to be in a plane perpendicular with the center of the base; and that it was moved with due regard to the safety of all the persons engaged in the work.

The evidence was to this effect: The age of the deceased, at the time of the accident, was about 49 years, and that of the foreman 37 years. The foreman was a common laborer, who had worked for defendant about two weeks and was a man of ordinary intelligence, and the latter had been in defendant's employ some over two years. He had charge of 40 to 50 men. He had never prior to the accident moved or assisted in moving a machine precisely like the one in question, but was familiar, in a general way, with heavy machinery and the manner of handling the same. No accident had previously occurred in doing work under his charge. He was a man of considerable experience in handling heavy articles. On the day in question, by direction of the superintendent of defendant's business, he selected a crew of men to work under his charge in unloading the machine. He procured the necessary material and appliances therefor. Therewith the crew, under his direction, constructed a skidway of the character stated in the complaint. It was of sufficient strength for the purpose for which it was designed. It was firmly secured at both ends and supported in the middle so as to bear up the machine without being displaced in any respect. The plan of the work was wholly laid out by the foreman. He first caused the machine to be placed in proper position to pass out the door of the car onto the skidway. It was then raised and four or five rollers were placed thereunder. They were 4 feet long or over and 4 to 6 inches in diameter. A rope was attached to the machine and the free end was then carried back through the car, down and twice around the truss thereof and thence to the hands of one of the assistants, charged with the duty of releasing it slightly, at intervals, as directed to do so, when it was desired to move the machine forward. The foreman and the deceased took positions in front of the machine, one being on each side of the skidway, for the purpose of replacing rollers thereunder as they were released at the rear and passed forward by a person located there for that purpose. The machine weighed about 6,000 pounds. From the base to the top of the frame it was 5 feet, from the former to the top of the geared wheel it was about 5 feet and 10 inches: It was 5 feet long at the base, 30 inches wide at the ends thereof for a distance of about seven inches, and otherwise it was 16 inches wide. The base was hollow. The weight was so distributed that the center of gravity was about at the intersection of a line passing through the machine widthway 2 feet from one end and 3 feet from the other, and a line passing through lengthwise in the middle, both lines being about 40 inches above the bottom. It could not tip over without being turned from an upright position sufficiently to move the center of gravity to one side a distance of about 8 inches. The exact situation in respect to such center was not observable by ordinary observation by reason of the hollow base, which was obscured. All members of the drew worked together in preparing to move and in moving the machine. It was transported successfully about halfway down the skidway, when Mr. Fitzsimmons, the superintendent of the business, came upon the scene. He immediately observed that one of the rollers was not exactly in proper place, and directed the foreman's attention thereto. Thereupon, the latter, with the assistance of deceased, remedied the matter. The man in charge of the rope, by direction, then released it sufficiently to allow the machine to move forward a short distance. As the work proceeded and the foreman and deceased were holding a roller in position for the advancing machine to engage it, the machine commenced slowly to tip toward the east. The superintendent, who had remained by from his aforesaid advent upon the scene, watching the progress of the work, first observed the tipping of the machine and immediately thereupon called out the danger. The deceased instantly side-stepped to escape from the reach of the machine, but, by mistake, proceeded in the wrong direction, resulting in his being struck and killed. The skidway on the side of the tipping did not settle or move out of place in any respect. The safety rope, so far as observed, did not fail in any respect to serve the purpose for which it was designed. There was no disturbance at any point connected with the movement of the machine, so far as any one observed, causing it to fall. Neither the foreman nor any one present was able to explain the occurrence after it happened. There was evidence that the base of the machine should have been skidded so as to afford a broader rest upon the rollers. Expert evidence was allowed under objection, that the way the work was done was dangerous. There was no evidence that it was a faulty manner in any respect except in that a false base was not constructed to give broader support to the machine. As to whether the method of moving it was proper the evidence was conflicting. Though there was evidence that the machine, supported only on the narrow base, would have a tendency to tip over, it was established that the center of gravity was on a line perpendicular with the center of the base as before indicated.

At the close of the evidence there was a motion for a directed verdict in favor of the defendant, which was denied.

The cause was submitted to the jury for a special verdict with this result:

(1) The deceased was killed as alleged in the complaint. (2) The method adopted of moving the machine was not reasonably safe. (3) The foreman was incompetent. (4) Defend...