Knudsen v. La Crosse Stone Co.

• Decision Date: 20 March 1911
• Citation: 130 N.W. 519,145 Wis. 394
• Parties: KNUDSEN v. LA CROSSE STONE CO.
• Court: Wisconsin Supreme Court

145 Wis. 394

130 N.W. 519

KNUDSEN

v.LA CROSSE STONE CO.

Supreme Court of Wisconsin.

March 14, 1911.

Dissenting Opinion, March 20, 1911.

Syllabus by the Judge.

The master should furnish his servants with a reasonably safe place to work, reasonably safe instrumentalities with which to do the work, and fellow servants provided should be reasonably safe as such; the standard of care as to each duty being such as is exercised by the great mass of mankind under the same or similar circumstances.

The presumption of fact is in favor of the master having performed the duties mentioned till overcome by evidence establishing the contrary to a reasonable certainty.

The safe place rule having been satisfied at the start, and the conditions being such that thereafter the servants necessarily are expected to make their own working places, which must, necessarily, change from time to time and at short intervals as the work proceeds, dangers created are not attributable to the master.

In the circumstances last mentioned, negligence of one or more of several servants, not excepting the foreman of the crew, rendering the working place of some other servant, or servants, unsafe is negligence of a fellow servant.

In operations where the servants necessarily make their own working place, the safe place to work rule has little or no application.

The foreman of a crew erecting a water tank, or removing heavy machinery from a car to a factory, or moving a pile driver, or in charge of a train crew, or the crew of a vessel, or a dock crew in regard to all the details of the general employment as regards the safe place rule, is a fellow servant of the men under him.

A blaster working with others under a foreman, all constituting a stone quarry crew, is a fellow servant of such foreman in respect to duties of the latter as to guarding against the working place of those under him being made unsafe by the rolling down from one level to another of earth or rock in the course of quarry work.

Appeal from Circuit Court, La Crosse County; Edward C. Higbee, Judge.

Action by Mathilda Knudsen, administratrix of Olaus Knudsen, against the La Crosse Stone Company. From a judgment notwithstanding the verdict in favor of defendant, plaintiff appeals. Affirmed.

Siebecker, Kerwin, and Timlin, JJ., dissenting.

Action to recover damages for the death of plaintiff's intestate. The deceased while employed by defendant as a blaster was killed, and, as alleged, under the following circumstances:

The intestate and others under a foreman were put to work for defendant in its stone quarry. There was a shelf of rock some 10 feet wide, 50 to 70 feet long and about 50 feet above the surface below, composed of rock. From the back side of the shelf a bank of rock and earth rose upwards, at a sharp angle backward, 15 to 20 feet to the top of a hill or bluff. Plaintiff on the day in question, by direction of the foreman, was at work on the shelf drilling blast holes. Other employés had partially loosened portions of rock and earth from the edge of the bank above. A large mass at the edge had been loosened so as only to be retained from rolling down by the frozen condition and roots. While the situation was such that the partly loosened mass was liable to fall at any time, that was not apparent to a person on the shelf below. The rule of the quarry was that the foreman should, personally, see that no chunks of earth or rock were allowed to be so circumstanced as to be liable to unexpectedly roll down and injure employés, and to see that no such dangers existed before putting employés at work, as in the case in question, and, further, to have due warning given to employés within the zone of danger before allowing chunks of earth and rock to be loosened and rolled down the side of the bluff. The situation in the particular case should have been known to the foreman before sending deceased to work on the shelf. The latter was entirely ignorant of such situation and was not guilty of any want of ordinary care in respect thereto. As directed he commenced operations on the shelf in the forenoon of December 31, 1909. He was not warned of the danger as before indicated. He was assured that the place was safe and relied thereon. While engaged in his work a large chunk of earth and rock suddenly became detached from the side of the bluff above and rolled down upon and killed him.

There were other allegations requisite to make out a cause of action if defendant was actionably negligent in respect to the cause of the death aforesaid.

Defendant answered putting in issue all allegations making out a breach of duty on its part and pleaded contributory negligence.

The evidence showed, or tended to show, this: The physical conditions were as alleged in the complaint. In the progress of the work, from time to time, it was necessary to uncover rock further back on the bluff than the shelf where deceased was directed to work and above that point. The work of uncovering at the particular time of year, because of the earth being frozen, required employés to go to the proper place at the crest of the bluff above the shelf, and by the use of wedges, crack off the frozen earth by strips and allow the same to roll down. In the forenoon of the day in question the foreman directed one of the crew to do work of that sort and marked off the particular strip of earth to be thrown down. By noon such strip had been sufficiently loosened to open up a seam back of it about 6 inches wide on the surface, and about 10 feet wide. The employé was then directed to help deceased on the shelf which was in the pathway of the partly loosened strip. The two commenced work on the shelf about 2 o'clock in the afternoon. They worked together a short time before noon. The foreman did not make any effort to discover the condition of things above the shelf. It was not observable to one circumstanced as the deceased was on the shelf and he did not know of it. While he was busily engaged and the foreman and one or two others were near by, the strip of frozen earth came wholly loose, rolled down and swept him from the shelf, causing him to fall on the rocks below with fatal effect. The foreman was under instructions to guard employés against such dangers. It was the custom for the foreman of a quarry to see that overhanging earth or rock was not left so as to be liable to roll down where employés were required to work and endanger their personal safety. The foreman in this case could have seen by casual observation before he sent the men to work in the afternoon that the strip of earth he had directed to be loosened had not been thrown down. Defendant relied upon such dangers as the one in question being prevented by the foresight of its foreman. He had full charge of the workmen and working conditions in the quarry. He directed operations as was necessary and himself took a hand in doing the work, sometimes at one place and sometimes at another.

The jury found thus: The working place where deceased was stationed was not reasonably safe. The frozen strip of earth was loosened by directions of the foreman. He directed deceased to work where he was located when swept from the cliff. The foreman did not know of the conditions respecting the strip of earth which had been partly loosened prior to the accident. In the exercise of ordinary care he ought to have known thereof. He did not warn deceased of the danger. The latter did not know of the strip of earth having been loosened. He was not guilty of any want of ordinary care in that regard. He did not have facilities equal to the foreman for knowing of the danger. Such danger was the proximate cause of the disaster complained of. The directions given to the deceased to work where he did, under the circumstances, was a proximate cause of his death. The failure of the foreman to warn deceased of the danger was a proximate cause of his death. The deceased was not guilty of contributory negligence. If on the facts plaintiff is entitled to recover the measure thereof should be $7,900.

Judgment was rendered notwithstanding the verdict in favor of the defendant.

J. E. Higbee and Frank Winter, for appellant.

McConnell & Schweizer and Bunge & Bosshard (Quarles, Spence & Quarles, of counsel), for respondent.

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

So it will be seen the defendant, in the legitimate pursuit of an important industry, a vocation which it was as important to the public and defendant's employés should be carried on as to the defendant itself, sent a crew to its stone quarry property for the purpose of operating the same. The working place was safe as the crew took possession thereof. Thereafter they necessarily made, in great part, their own respective working places. The safety of one was greatly dependable upon the conduct of his fellows. All were employed in the common employment. From day to day the work went on. Proper regulations, so far as any were required, were made. The working place was in proper condition in the morning in question. So far as appeared to respondent up to the instant of the accident, the foreman and all associated with the blaster, Mr. Knudsen, were reasonably careful men and competent in every way for performance of the duties assigned to them. The instrumentalities furnished for the work were all right. It was left to the crew so organized and equipped to do the work, the foreman being specially charged to look after the safety of the men and, particularly, as regards dangers from being in the pathway of earth and rock that might roll down the bluff.

The operation which resulted in creating the danger was conducted for considerable length of time and not more than about 25 feet from Knudsen's working place. While he may have been so circumstanced that he could not see the person at work while creating the danger, the manner and kind of work was such that he must have known what was going on and known when, later in...