Johnson v. Ashland Water Co.

• Decision Date: 17 April 1888
• Citation: 37 N.W. 823,71 Wis. 553
• Parties: JOHNSON v. ASHLAND WATER CO.
• Court: Wisconsin Supreme Court

71 Wis. 553

37 N.W. 823

JOHNSON

v.ASHLAND WATER CO.

Supreme Court of Wisconsin.

April 17, 1888.

Appeal from circuit court, Ashland county.

Action by Gilbert Johnson against the Ashland Water Company for injuries sustained by plaintiff while in the employ of defendant. Judgment for plaintiff. Defendant appeals.Tomkins & Merrill, for appellant.

A. E. Dixon, for respondent.

TAYLOR, J.

The respondent brought an action against the appellant to recover damages for personal injury sustained by him while in the employ of the appellant. The appellant demurred to the complaint served by the respondent, on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was overruled by the circuit court, and from the order overruling it he appeals to this court. The following is the substance of the complaint: First. The complaint alleges that the defendant is a corporation, under the name stated in the title of the action. Second. That John Johnson and G. W. Furville made an oral contract with the defendant to dig a ditch in Water street, in the town of Ashland, for a stipulated price per foot; that such ditch was a part of the work necessary for the construction of the water-works the defendant was constructing under its charter. Third. That plaintiff was employed by said John Johnson and D. W. Furville, and engaged in digging said ditch, on the 14th day of October, 1885, and that, at the same time, the defendant was engaged in the work of calking and laying iron pipes in the ditch which plaintiff was engaged in digging; that one W. C. Pooley was the superintendent of said defendant, and, as such superintendent, had charge of the said work of calking and laying iron pipes, and employed men to do such work; that, on said 14th day of October, George Gandsey and several other men were engaged in calking and laying pipes, under the direction of said Pooley, superintendent, etc.; and that, when said Pooley was not present personally directing and superintending said work, the said George Gandsey was authorized by said Pooley to have control of the work, and of the men who were assisting in said work. Fourth. That while plaintiff was engaged in digging said ditch, and said Gandsey was, during the absence of said Pooley, engaged in calking said iron pipes, the said Gandsey called the plaintiff, and directed him to raise one of the pipes upon which the said Gandsey was working; that the plaintiff responded to the request and instructions of said Gandsey, and raised one end of said pipe; and that while the plaintiff was so obeying the directions of said George Gandsey, without any fault or neglect on his part, the said iron pipe rolled from the blocks upon which it lay, and fell upon the plaintiff, breaking his leg, and causing other severe injuries. The remainder of the complaint is as follows: “That the tools, implements, and apparatus with which the defendant was doing said calking at that time and place were defective and unsafe, and said work was performed in an improper and unsafe manner, of all of which plaintiff had no knowledge. That in doing said calking, at the time plaintiff was injured as aforesaid, the defendant and its servants carelessly and negligently laid the iron pipes upon shingle blocks; and when said pipes were so placed upon shingle blocks, they were insecure, and were liable to roll off at any time. That, while the said pipes were so placed upon shingle blocks, it was unsafe to work upon them, or move them, and that two men could not properly and safely handle and work upon said pipes when the said pipes were placed as above mentioned, of all of which plaintiff had no knowledge. In doing said work of calking and laying iron pipes, it was the defendant's duty to this plaintiff to use proper and safe tools, implements, and apparatus, and to employ a sufficient number of servants to do said work in a safe and proper manner, and to use due care in all respects in doing said work; but that defendant failed to perform its said duty in so much that it did not furnish and use proper and safe tools, implements, and apparatus, and that it did not keep and use a sufficient number of servants to do said work in a safe and proper manner, by reason whereof, and by reason of the negligence of defendant's said servant, ...