Herning v. Holt Lumber Co.

• Court: Wisconsin Supreme Court
• Writing for the Court: TIMLIN
• Citation: Herning v. Holt Lumber Co., 153 Wis. 101, 140 N.W. 1102 (Wis. 1913)
• Decision Date: 08 April 1913
• Parties: HERNING v. HOLT LUMBER CO.

153 Wis. 101

140 N.W. 1102

HERNING

v.HOLT LUMBER CO.

Supreme Court of Wisconsin.

April 8, 1913.

Appeal from Circuit Court, Marinette County; E. B. Belden, Judge.

Action by Florence Herning, administratrix of the estate of John Herning, deceased, against the Holt Lumber Company. Judgment for plaintiff, and defendant appeals. Affirmed.Quarles, Spence & Quarles, of Milwaukee (I. A. Fish, of Milwaukee, of counsel), for appellant.

P. A. Martineau, of Marinette, for respondent.

TIMLIN, J.

The complaint in this cause averred that plaintiff's decedent, John Herning, on August 1, 1910, while in the employment of defendant and engaged in performing the duties of such employment, came to his death in consequence of being caught on a revolving shaft so located as to be dangerous to the employés of defendant in the discharge of their duties; that the defendant negligently permitted this shaft to be unguarded and unfenced. One count of the complaint sought to recover damages accruing to the decedent and another damages accruing to his surviving father and mother, a combination which is permissible under our statutes. The jury awarded under the first count above referred to, being the second count of the complaint, $1,227, which included an item of $107 for burial expenses and under the second count $2,500.

Special Verdict:

“Question 1. Did the defendant, the Holt Lumber Company, intrust to John Herning the duty of getting the engine and its attachments in proper condition for use at Townsend? Answer. No.

Question 2. Had the defendant the right, in the exercise of ordinary care, to believe that John Herning would properly guard the shaft before operating the engine? Answer: No.

Question 3. Was the shaft by which John Herning was injured so located as to be dangerous to defendant's employés in the discharge of their duty while using ordinary care? Answer: Yes.

Question 4. Did any want of ordinary care on the part of John Herning proximately contribute to his injury and death? Answer: No.

Question 5. What sum of money would reasonably compensate John Herning for the damages caused to him by reason of his injury in question? Answer: (a) Pain and suffering $1,000; (b) expenses of medical treatment $120; (c) burial expenses $107.

Question 6. What sum of money will reasonably compensate the father and mother of John Herning, deceased, for the death of their said son? Answer: $2,500.”

Appellant contends that the evidence shows without dispute that the decedent was by his employment charged with the duty of putting the engine in question and its attachments, including the shaft, in proper condition for use, and also had charge and control of the operation of such engine, and upon this hypothesis bases two conclusions of law, either of which it contends relieves it from liability, viz.: (1) The decedent, having been charged by his employer with and having assumed the duty of putting the engine and its attachments into proper condition, was negligent in not guarding or fencing the shaft if it was so located that the law required it to be fenced or guarded, hence cannot recover; (2) decedent should in the exercise of ordinary care have stopped the engine before attempting to lubricate the bearings of the shaft in question.

[1] Without conceding the legal accuracy of the first conclusion, it is manifest that no such question arises if the first answer of the special verdict is supported by evidence. W. A. Holt, the vice president and manager of defendant, gave directions to one Ferguson, foreman of one of defendant's mills and a mechanic, to erect a hoist for handling logs at Townsend, using machinery for that purpose which defendant had on hand at another place. Part of this hoist consisted of a portable steam engine and boiler so constructed that the engine, driving shaft and flywheels were fastened on top of the boiler, and this outfit was brought from Ontonagon to Oconto, where one of the flywheels was taken off and left, thus leaving the end of the shaft which formerly carried this flywheel projecting, exposed, and having a key seat grooved in the side of its projecting end. Holt and Ferguson were at Oconto, and there the latter worked on the outfit under the directions of Holt, and from there the outfit was sent to Townsend to be set up and put in place. But this setting up and putting in place could not change, and was not intended to change, the relative position of the boiler engine and shaft. That was fixed. Ferguson, acting under Holt, also went to Townsend to erect, assemble or help in the erection and assembling of this machinery, and there was also sent up a millwright or carpenter named McKalson. Subordinate to Holt was Paul McDonald, superintendent of all the logging work on the Oconto river, and this hoisting plant was under his supervision. Under Paul McDonald was a subordinate foreman named Ed Hereld, whose duty it was to look after the job at Townsend, and get the hoist ready and who had charge of the men there to do the loading and putting up the hoist. Paul McDonald employed the decedent, and told him to put up the engine and hoist, and fit up the engine. He testifies that he looked to Herning for the erection and getting into condition of this engine at Townsend. Mr. Holt testifies that Hereld was foreman at the hoist under McDonald, and that he had power to hire and discharge any man in the crew, and the crew consisted of an engineer,...