Jakopac v. Newport Mining Co.

Decision Date08 April 1913
Citation140 N.W. 1060,153 Wis. 176
PartiesJAKOPAC v. NEWPORT MINING CO.
CourtWisconsin Supreme Court

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Milwaukee County; Chester A. Fowler, Judge.

Action by Lika Jakopac against the Newport Mining Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Personal injuries. The plaintiff, a Croatian, who could not speak English, was employed by the defendant company as a trammer in the fourteenth level of its mine at Ironwood, Mich., and was seriously injured by the falling of ore from the roof of a drift December 21, 1909, he being then about 37 years of age; he was one of a shift of four men, composed of two miners and two trammers; there was a day shift and a night shift; and both were under the direction of a shift boss or foreman named Boalich. The place where the shift was working was in an old drift, the roof of which had settled down, and hence the old timbering was being taken out and new timbering being put in; at the place where the accident happened the old timbering had been removed and some quantity of earth, ore, and rock lay on the floor ready for removal, preparatory to putting in a new set of timbers. The duty of the trammers is to remove the fallen rock and ore and to load the same into small vehicles, called buggies, which run on a track to the chute; it is the duty of the miners to loosen the ore, and also to put in the timbers after the trammers have removed the ore and rock which has fallen. Boalich, the shift boss, testified that it was his duty to direct the men where, when, and how to work; that he had charge of the trammers, and it was part of his duty to see that the place where they work is safe and kept safe; that it was his duty to tell them to keep out of dangerous places. All employés had candles and were supposed to carry them in their caps. The plaintiff testified that he came to work on the day of the accident at about a quarter to 8 a. m.; that he greased his buggy; that he had a candle, but had put it behind a timber because the draft was so strong; that the shift boss came along and raised his candlestick and went into the place; that he called to plaintiff for a jumper and an auger, neither of which the plaintiff could find; that the shift boss then took a piece of wood or timber and went into the untimbered part of the drift and “was knocking down,” and that then he told the plaintiff to come in there and shovel, and he (plaintiff) asked if it was a safe place, and Boalich told him it was safer in there than it was in his own home; that he then went in and started shoveling dirt, and, when he had shoveled 15 or 20 shovels, a body of iron ore fell on him from the roof and severely injured him.

There is no question of the injury or the seriousness of it raised in the case, but it is claimed on the part of the defense that no assurance of safety was given by Boalich, but that on the contrary he warned the plaintiff that it was dangerous; and it is also claimed that, if the plaintiff had used his candle and examined the roof, he could have himself seen the danger.

The following special verdict was returned by the jury:

(1) Was it the custom, in the mine where plaintiff was injured, for the trammers to commence to remove ore or dirt only when directed to do so by the shift boss or miners? Answer: Yes.

(2) Did the shift boss, prior to plaintiff's injury, order the plaintiff to commence removing the ore from the place where he was injured? Answer: Yes.

(3) Did the shift boss, before the plaintiff began work at the time of his injury, assure the plaintiff that the place was safe? Answer: Yes.

(4) Was the place at which plaintiff was injured reasonably safe? Answer: No.

(5) If to the fourth question you answer ‘No,’ then answer this question: Was the want of safety thus found the proximate cause of plaintiff's injury? Answer: Yes.

(6) Did the plaintiff know the place was unsafe? Answer: No.

(7) Ought the plaintiff to have known the place was unsafe? Answer: No.

(8) Was there any want of ordinary care on plaintiff's part that contributed to produce his injuries? Answer: No.

(9) What sum will compensate the plaintiff for the injuries sustained? Answer: $7,666.66.”

From judgment for the plaintiff on this verdict, the defendant appeals.

Flanders, Bottum, Fawsett & Bottum, of Milwaukee (James G. Flanders, of Milwaukee, of counsel), for appellant.

W. P. Crawford, of Superior, and Glicksman, Gold & Corrigan, of Milwaukee, for respondent.

WINSLOW, C. J. (after stating the facts as above).

[1][2] It is very well established that, in the absence of some statutory provision, an adult servant assumes the ordinary risks of his employment, and that the rule requiring the employer to furnish the servant a safe place to work has no proper application to such operations as building or mining and the like, where the working place is constantly changing and the servant is assisting in making the change himself. In the present case, however, the jury have found on sufficient evidence that the plaintiff was assured by the shift boss, before he went into that part of the drift where he was hurt, that the place was safe.

[3][4] The question presented on the merits is therefore whether the evidence was sufficient to justify the jury in finding that the plaintiff could lawfully rely upon that assurance, and thus be excused from making any independent examination of the roof of the drift himself before going in to shovel out the rock. We do not have to go to other states for authorities on this question. This court has held that, where an employé enters on a task attended by dangers which are just as obvious and apparent to him as to the master, he assumes the risk, notwithstanding an assurance by the master or his representative that there is no danger. Showalter v. Fairbanks, M. & Co., 88 Wis. 376, 60 N. W. 257. This court has also held upon ample authority that “if the employé has no actual knowledge of the danger, and it is not obvious to the sense, but only to be ascertained by careful examination or test, and the master or superintendent having superior knowledge of the situation, or assuming to have such knowledge, assures the employé of safety, and the employé, relying on such assurance, goes to work, he will not be held, as matter of law, to have assumed the risk.” Holloway v. H. W. Johns, etc., Co., 135 Wis. 629, 116 N. W. 635. If he will not be held to have assumed the risk, for a stronger reason he will not be held, as matter of law, to have been guilty of contributory negligence. According to the plaintiff's evidence here, the shift boss went into the dangerous place with his candle and came out and ordered the plaintiff to go in and shovel up the débris on the floor, telling him that the place was as safe as his home. It is quite plain that it would take some examination of the roof with the aid of a light to ascertain what the condition was. It was clearly a question for the jury to pass upon whether, in view of the order and the assurance, the plaintiff was excused from making any independent examination of the roof himself. A number of detail errors are assigned, which will now be considered.

[5] 1. The plaintiff examined Boalich, the shift boss, on the trial as an adverse witness, under section 4068 of the statutes, and, at the conclusion of the examination, the court refused to allow the defendant's counsel to cross-examine him. This was error under the recent case of Guse v. P. & M. M. Co. (present term) 139 N. W. 195. Boalich was, however, called as a witness by the defendant, and fully examined; it is not now suggested that the defendant has been deprived of the benefit of any...

To continue reading

Request your trial
13 cases
  • Newell Contracting Co. v. Flynt
    • United States
    • Mississippi Supreme Court
    • June 3, 1935
    ... ... Wolters ... v. Summerfield Co., 160 Iowa 127, 140 N.W. 388; Jakopac ... v. Summerfield Co., 153 Wis. 176, 140 N.W. 1060 ... The ... rule requiring a ... ...
  • Cybur Lumber Co. v. Erkhart
    • United States
    • Mississippi Supreme Court
    • July 8, 1917
    ... ... 236; ... Wolters v. Summerfield Co., 140 N.W. 388, (Iowa); ... Jacopac v. Newport Mining Co., 140 N.W. 1060, 153 ... Wis. 176; Pern v. Wussow, 129 N.W. 622, 146 Wis ... 489; ... temporary perils arising in the course of employment." ... In ... Jakopac v. Summerfield Co., 153 Wis. 176, ... 140 N.W. 1060, it is held: ... "The ... rule ... ...
  • Dolphin v. Peacock Mining Co.
    • United States
    • Wisconsin Supreme Court
    • January 13, 1914
    ...[3] Upon the evidence in the record we are convinced that the question of contributory negligence was for the jury. Jakopac v. Newport M. Co., 153 Wis. 176, 140 N. W. 1060;Holloway v. Johns-Manville Co., 135 Wis. 629, 116 N. W. 635;Hamann v. Milwaukee B. Co., 136 Wis. 39, 116 N. W. 854;Land......
  • Newell Contracting Co. v. Flynt
    • United States
    • Mississippi Supreme Court
    • May 6, 1935
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT