Hollenbeck v. Chippewa Sugar Co.

• Decision Date: 13 January 1914
• Citation: 156 Wis. 317,144 N.W. 1104
• Parties: HOLLENBECK v. CHIPPEWA SUGAR CO. ET AL.
• Court: Wisconsin Supreme Court

156 Wis. 317

144 N.W. 1104

HOLLENBECK

v.CHIPPEWA SUGAR CO. ET AL.

Supreme Court of Wisconsin.

Jan. 13, 1914.

Appeal from Circuit Court, Chippewa County; James Wickham, Judge.

Action by Conrad Hollenbeck against the Chippewa Sugar Company and another. From a judgment for defendants, plaintiff appeals. Reversed and remanded, with instructions.

Action for personal injuries. The negligence alleged is in effect that the defendant Chippewa Sugar Company failed to furnish plaintiff a reasonably safe place to work, and failed to promulgate rules for the warning of men working upon the tracks where cars were being shunted in. The alleged negligence on the part of the railway company is failure to keep a lookout when moving cars, and failure to give warning of the movements of cars.

A special verdict was returned as follows:

“(1) Did the defendant Chippewa Sugar Company fail to furnish the plaintiff with a reasonably safe place in which to perform his work? Answer: Yes.

(2) If you answer question 1 ‘Yes,’ then did the said defendant Chippewa Sugar Company fail to exercise ordinary care in failing to furnish the plaintiff with a reasonably safe place in which to perform his work? Answer: Yes.

(3) If you answer question No. 2 ‘Yes,’ then was said failure of the said defendant sugar company to exercise ordinary care the proximate cause of the plaintiff's injury? Answer: Yes.

(4) During all the time that plaintiff was working in the beet shed, and prior to the occasion of his injury, whenever the servants of the defendant railway company were about to move the train of cars into the alley in said shed where men were picking up beets, did there exist on the part of the railway employés a custom always to notify said men so working in said alley of the approach of said cars? Answer: Yes.

(5) Did James Hedrington inform the plaintiff before the time when the plaintiff was injured that said railway company's servants always followed the custom mentioned in question No. 4? Answer: Yes.

(5 1/2) If you answer question No. 5 ‘Yes,’ did plaintiff, up to the time of his injury, rely upon said information and believe it to be true? Answer: Yes.

(6) Did the defendant sugar company, prior to the time the plaintiff was injured, fail to provide and put into practice any rule for giving warning to persons who were at work in the alleys picking up beets of the approach of trains of cars whenever such cars were about to be moved into said alleys where said persons were working? Answer: Yes.

(7) If you answer question No. 6 ‘Yes,’ then did the defendant sugar company fail to exercise ordinary care in failing to provide and put into practice such rule for warning such persons of the approach of said train? Answer: Yes.

(8) If you answer question No. 7 ‘Yes,’ then was such failure of the defendant sugar company to exercise ordinary care the proximate cause of the plaintiff's injury? Answer: Yes.

(9) When the servants of the railway company moved the train of cars into the alley where the plaintiff was working just before the time of his injury, did said servants who had charge of said train fail to give reasonable warning to all persons who might be in said alley, of the approach of said train? Answer: Yes.

(10) If you answer question No. 9 ‘Yes,’ then did said railway servants fail to exercise ordinary care in failing to give such warning? Answer: Yes.

(11) If you answer question No. 10 ‘Yes,’ then was such failure of said railway servants to exercise ordinary care in failing to give such warning the proximate cause of plaintiff's injury? Answer: Yes.

(12) Did said railway servants, who had charge of the movement of the cars just before the time of the plaintiff's injury, all fail to keep a reasonable lookout in the direction in which said cars were moving to prevent injury to persons who might be on and near the railway tracks? Answer: Yes.

(13) If you answer question No. 12 ‘Yes,’ then did such railway servants fail to exercise ordinary care in failing to keep such lookout? Answer: Yes.

(14) If you answer question No. 13 ‘Yes,’ then was said failure of said railway servants to exercise ordinary care in failing to keep such lookout the proximate cause of the plaintiff's injury? Answer: Yes.

(15) Was the danger of the plaintiff getting injured by the cars, while working in the alley under the conditions as they existed, such that the plaintiff by the exercise of ordinary care should have known and appreciated such danger before the time of his injury? Answer: No.

(16) Did any want of ordinary care on the part of the plaintiff proximately contribute to his injury? Answer: No.

(17) If the court should determine that the plaintiff is entitled to judgment on this verdict, then at what sum do you assess the plaintiff's damages? Answer: $7,500.”

On motions made after verdict the court changed the answer to the sixteenth question from “No” to “Yes,” and found plaintiff guilty of contributory negligence, and ordered judgment dismissing the complaint. Judgment was entered accordingly, from which this appeal was taken.

W. H. Frawley and T. F. Frawley, both of Eau Claire, for appellant.

W. H. Stafford, of Chippewa Falls (T. J. Connor, of Chippewa Falls, of counsel), for respondent Chippewa Sugar Co.

W. A. Hayes, of Milwaukee, (John L. Erdall, of Minneapolis, Minn., of counsel), for respondent Minneapolis, St. P. & S. S. M. Ry. Co.

KERWIN, J. (after stating the facts as above).

The alleged contributory negligence of the plaintiff is the main question in the case, although counsel for respondents argue that no negligence on the part of defendants was shown. The jury found negligence on the part of both defendants, and the court below did not disturb such findings.

[1] A careful examination of the evidence convinces us that the findings of negligence are well supported by the evidence. Counsel for defendant Chippewa Sugar Company contends that the place where plaintiff was working was safe. It appears that the shed where the beets were being stored was about 400 feet long and between 100 and 133 feet wide, with three alleys running through it lengthwise, occupied by railway tracks, the middle alley being the one where plaintiff was at work when injured. The duties of the plaintiff and several others were to unload cars as they were shoved in upon these tracks. In unloading beets would fall beside the cars, and when the cars were switched out the men engaged in unloading would shovel the beets which were upon the ground into the bin. The work of unloading was done in great haste, the men being paid by the ton, and having to work rapidly in order to keep the unloading done as fast as the cars came in. The alleys in the sheds through which the tracks were laid were narrow, there being not sufficient room in some places between the side of the car and bin for a man to safely stand, so it was necessary for the men shoveling beets into the bin to get out of the way when a car was being shoved in. The sides of the bins were between 6 and 8 feet high, and no provision was made by ladders or otherwise for climbing out of the alley upon the bins. When the car was shovedin the men on the ground shoveling beets into the bin, when they had notice of its coming, would go out of the alley. In the instant case there is evidence that the car came into the alley at the rate of six or eight miles per hour, and that plaintiff did not see it in time to get out of the way, and was crushed between the side of the bin and the car; that cars were pushed in at intervals varying from 20 minutes to an hour or more, and plaintiff relied upon being notified of the approach of cars; that he was on the north side of the alley with his back to the east, shoveling beets from the ground into the bin; that when the car came upon him he did not have time to get out at the west end and...