Johnson v. First Nat. Bank of Ashland

• Decision Date: 09 April 1891
• Parties: JOHNSON v. FIRST NAT. BANK OF ASHLAND.
• Court: Wisconsin Supreme Court

79 Wis. 414

48 N.W. 712

JOHNSON

v.FIRST NAT. BANK OF ASHLAND.

Supreme Court of Wisconsin.

April 9, 1891.

Appeal from circuit court, Ashland county; J. K. PARISH, Judge.

Action for personal injuries by John P. Johnson against the First National Bank of Ashland. Defendant appeals.Tomkins, Merrill & Smith, for appellant.

Frank A. Ross and Eric L. Winje, for respondent.

ORTON, J.

The following are substantially the facts of this case: In December, 1887, the appellant bank had about finished the construction of a three-story brick bank building. One B. B. Scott was the superintendent of the entire work, and one Robert Huston was the superintendent or foreman of the mason-work, and they both employed and discharged the workmen in and about said building. There was a shed, made of boards, built under the direction of the said Scott or Huston, in the rear of the bank building, and about seven feet from it, as a shelter for brick; and a large quantity of brick was piled up in it. A short time before the accident débris of broken brick and mortar and other refuse had been thrown from the windows of the bank building down upon the roof of the shed, and deep and damp snows had fallen on it, and remained there, which added great weight to the roof, and finally caused it to fall. The employes of the bank had removed the snow from the nearly flat roof of the bank building as a proper precaution against its weight. The plaintiff had been employed by the bank as a common laborer about 18 days before, and on the morning of the 3d day of December, 1887, was employed in carrying brick from the shed to the alley back of it, and while in the shed for such purpose the roof fell on him by its superincumbent weight, and badly injured him. The shed was built before the plaintiff was employed, and he did not know of the brick, mortar, and other refuse on its roof, and had not observed the snow on it. Another laborer was working with him, who heard the noise of the falling roof and escaped, while the plaintiff was caught and pinioned by it while trying to escape. The business of the bank was transacted by a board of directors, and they employed the said Scott and Huston. The plaintiff recovered $1,500, and the defendant has appealed.

1. The first point made by the learned counsel of the appellant embraces several minor propositions, such as (1) that the shed was better constructed than such sheds usually are; (2) that the master retained no supervision over its erection, (3) but employed good materials and skilled workmen in its erection. There is no complaint that the shed was not properly built, or of the workmen or materials. The shed fell in consequence of the unusual weight upon its roof. This makes the above propositions inapplicable and immaterial. The only pertinent position is that the bank had no more knowledge of the snow and rubbish on the roof than the plaintiff. The defendant is a corporation that must in all cases act through officers, agents, and employes, so that the knowledge of such agents must be imputed to and is the knowledge of defendant. It is not to be supposed that the mere common laborer who threw this rubbish on the roof did so without the direction of those who had the right to do so. It was in evidence that snow, also, had been thrown from the roof of the bank building upon the roof of the shed, which added to the weight of the snow that naturally fell on it. It does not appear who placed this additional weight on the roof of the shed. Those under whose direction it was done knew of it, and they might have reasonably supposed that it would endanger the roof. The common laborers who did the work are not presumed to have known that such additional weight to the roof would be allowed to remain there until it caused the roof to fall. It did not fall while it was being placed there. Wherein, therefore, were they who did the work negligent? It was the constant and increasingpressure of its weight that made the roof fall. Those who let it remain there were guilty of the negligence, and they were those who were acting in the place of the company, and for whose acts the company was responsible. The company, therefore, knew that there was danger to the roof in letting the rubbish and snow remain on it. The plaintiff testified that he did not know of it, and had not observed it. It was certainly not within the common observation of the plaintiff and others who were engaged in carrying brick out of the inside of the shed, so that they might be presumed to know of it. Everything done about that building or the shed must have been done under the direction and supervision of either Mr. Scott or Mr. Huston, and they acted in all things for and in place of the company. They had the sole control of all things for the corporation, and exercised all the power, judgment, and discretion of the corporation, and filled the place of masters in all things within their powers and duties as superintendents. They not only employed men, and paid them, but they directed them what to do. There is no chance for an argument that these two men were not vice-principals in respect to the plaintiff and other employes. The facts of the case, therefore, make the first point in the appellant's brief impertinent and inapplicable.

2. The next point made by the learned counsel of the appellant is in part but a repetition of the first, but, in addition, that, if the plaintiff, knowing the hazards of his employment as the business is conducted, is injured while engaged therein, he cannot maintain an action against his employer merely because the business might be carried on in a safe mode. But the plaintiff did not know of...