Kraeft v. Meyer

• Decision Date: 28 January 1896
• Citation: 92 Wis. 252,65 N.W. 1032
• Parties: KRAEFT v. MEYER ET AL.
• Court: Wisconsin Supreme Court

92 Wis. 252

65 N.W. 1032

KRAEFT

v.MEYER ET AL.

Supreme Court of Wisconsin.

Jan. 28, 1896.

Appeal from circuit court, Milwaukee county; D. H. Johnson, Judge.

Action by Albert Kraeft against William H. Meyer and others. There was a judgment for plaintiff, and defendants appeal. Reversed.

The plaintiff brought this action to recover against the defendants damages sustained by him for an injury received while working as a stevedore in unloading the steam barge Helena, of which the defendants are the owners, at a wharf in the city of Milwaukee, and which was laden with a cargo of stove-size coal, and was being discharged of its cargo by a boss stevedore and his assistants, pursuant to a contract with the consignees of the cargo. It is charged that it was the duty of the defendants to leave the barge in a condition to be safe and secure for the plaintiff to work upon; that the defendants were careless and negligent, in that they left the scuttle or trimming hole open on the lower deck at a time and place when and where the plaintiff, in the discharge of his duty, was necessarily required to pass, and that while doing so he stepped into said scuttle hole and broke his leg. And it was also charged that the hatch in the upper deck nearest the scuttle, and through which light might have given warning to persons on the lower deck that said scuttle was open, was closed, so that no light could come from said hatch to enable the plaintiff to discover the danger from the scuttle or trimming hole being open. The scuttle or trimming hole was an opening in the lower deck about 10 inches wide and 20 inches long, and at the time was entirely unguarded; and it was claimed that it was the duty of the defendants to have the said scuttle hole closed before allowing the men unloading the said coal to use the said deck for the purpose of going to and from their work. There was a general denial of the principal allegations of the plaintiff's complaint, and it was alleged that the plaintiff's injury was occasioned solely through his negligence, carelessness, and improper conduct. At the close of the plaintiff's testimony the defendants moved the court for a nonsuit, but it was denied, and at the close of the case the defendants moved the court to direct a verdict in their favor. This motion was denied. A special verdict was found, to the effect: (1) That the barge, at the time of the plaintiff's injury, was being discharged of her cargo by a stevedore and his men, under a contract with the consignees of the cargo. (2) The cargo was laden in the hold in part, and on the between decks in part. (3) That part of the lower deck where the plaintiff received his injury was not laden with coal, so as to prevent its use as a way for passing and repassing, (4) but was apparently in a condition fit and proper for its use by a man of ordinary care, in passing forward and aft. (5) That the scuttles or trimming holes in that part of the lower deck were open. (6) That it was negligence on the part of the defendants, their officers and employés, to leave such scuttles or trimming holes so open. (7) Such negligence was the proximate cause of the plaintiff's injury. (8) While the barge was being discharged of her cargo by the stevedore and his men, the opening and closing of the hatches were not under their control and direction. (9) The hatches in the upper deck, above the place where the plaintiff was injured, were not closed at the request of the stevedore's men. (10) Hatches Nos. 1 and 5 were being worked at the time of the plaintiff's injury. (11) There was no stationary ladder leading from the lower to the upper deck at the place where the plaintiff worked. (12) That there was a ladder on board said vessel, which the plaintiff could have had for the asking, to go down the hatch in which he worked. (13) The dangers and risks of the plaintiff by reason of the uncovered scuttle or trimming hole where he was injured were not such as would be apparent to a person using ordinary care and observation, and having the knowledge and experience in and about steam barges in general, and the steam barge Helena in particular, which the plaintiff then had. (14) The plaintiff was not guilty of any negligence or want of ordinary care which proximately caused or contributed to his injury. (15) It was customary, upon the Helena and vessels of her class, to leave the scuttles or trimming holes open when the vessels were turned over to the stevedores for unloading. (16) It was the duty of the officers and men employed in the vessel to close such scuttles or trimming holes. (17) The defendants were guilty of negligence which proximately caused the plaintiff's injury, in leaving open the scuttle or trimming hole into which the plaintiff stepped or fell when he received his injury. (18) The plaintiff was not guilty of any want of ordinary care, which proximately caused or contributed to his injury, in stepping or falling into said scuttle or trimming hole. (19) And the plaintiff's damages were assessed at the sum of $3,779.16, for which amount, with costs, judgment was given against the defendants, from which they appealed.Van Dyke, Van Dyke & Carter, for appellants.

Fiebing & Killilea, for respondent.

PINNEY, J. (after stating the facts).

It appeared from admitted facts, and from uncontradicted evidence, that at the time of the plaintiff's injury, November 3, 1891, the barge Helena, owned by the defendants, was laden with a cargo of about 2,200 tons of stove-size hard coal, partly in her hold and partly between decks, consigned to Hadfield & Co., under a bill of lading which required them to discharge the same, and was lying at their dock, and they had made a contract with a boss stevedore, Carroll, to discharge the cargo. Carroll and his men commenced the work in the morning, working one hatch forward and one hatch about midship, and he had hired the plaintiff, who was assisting at the latter hatch. The plaintiff was a stevedore of 21 years' experience, and had unloaded the Helena, when laden with coal, 10 times, on previous occasions, and was familiar with the use and functions of trimming holes in loading and unloading, and with the structure of the barge in that respect. The depth of hold of the barge, from her upper deck, was over 22 feet, and the distance between decks about 8 feet in the lowest part. There were 8 hatches in the upper deck, and 8 in the lower deck, directly under them. These hatches extend crosswise of the barge; those in the upper deck being 30 feet long, and those in the lower deck 20 feet long, and all of them 8 feet wide, and, on each deck, 16 feet apart. Through these hatches the cargo is taken in and discharged. There are also scuttle or trimming holes or hatches in the lower deck, 10 inches wide and 2 feet long. Those called “wing scuttles,” about 3 or 4 feet from the side, are...