LaRsson v. McClure

• Decision Date: 16 March 1897
• Citation: 95 Wis. 533,70 N.W. 662
• Parties: LARSSON v. MCCLURE.
• Court: Wisconsin Supreme Court

95 Wis. 533

70 N.W. 662

LARSSON

v.MCCLURE.

Supreme Court of Wisconsin.

March 16, 1897.

Appeal from circuit court, Douglas county; A. J. Vinje, Judge.

Action by Louis Larsson against William C. McClure, surviving partner of the firm of Mitchell & McClure. From a judgment for plaintiff, defendant appeals. Reversed.

This action was brought to recover damages for a personal injury sustained by the plaintiff while working as a common laborer in a gravel pit for the firm of Mitchell & McClure, and by reason of their alleged negligence in not furnishing him with a safe place to work, and in not notifying him of the danger to which he was exposed where he was directed to work, and of which he had no knowledge. The bank by which he was working in the gravel pit caved in upon him, and in consequence his leg was fractured, and he sustained other injuries, etc. The action was brought against the defendant McClure, as surviving member of the said firm, and he answered, denying the principal allegations of the complaint, and alleging that the plaintiff's injuries were caused by and through his own negligence. It appeared that the plaintiff, at the time of his injury, January 18, 1895, had worked on Mitchell & McClure's railroad about eight days, and was then engaged in loading gravel upon cars in a gravel pit four or five cars in length; that he commenced in the morning, and had worked at the back car, but was directed by the boss, Sam Erickson, who hired the men, to go forward about 100 feet, where he had worked only about half an hour, when he got hurt. There was frost in the ground, and they had to blast the bank, so that they could get the thick crust off, and take the bank down, and get sand and gravel. Charles Erickson did the blasting, commencing at the west corner, working east, and removing the frozen crust; and the plaintiff testified that he could not see whether he had removed the frozen crust in front of the bank; that he was at work, shoveling, about six or eight feet from the edge of the frozen crust, when the bank fell down, and struck him on the left leg, so that he fell over, and received the injuries complained of; that he did not see the bank falling before it struck him, it came so quick. The plaintiff had worked at railroad work and in gravel pits for three years before. And he further testified, in substance, that in the present instance, to get the frozen part off, they dug along with crowbars, and lifted it away; that Charles Erickson helped the boss, Sam Erickson, to get the gravel loose,--to blast it; that he went on top of the bank with a drill, and put in blasts, and when he got ready to explode them they all went away; that he had fired five or six blasts that morning; that when they began to blast, the bank was straight up and down, and that they all shoveled up gravel right along the bank; that a blast was fired a short time before he got injured, and that just before the blast he had got right up under the bank; that the boss told them when the blast was to come off, and then they went away, and, when he told them, they all came back; that when they got back after that explosion the boss told them all to take the same places; that half an hour after the blast he got hurt, and that at that time some big chunks had fallen down, and there was loose gravel in the bottom, which he was getting out, when the bank fell, while he was close under, and within a foot of the bank. Further, that the frost in the bank was a foot or so thick, and that he did not see the chunk before it fell, and could not tell, from looking up there, that it was loose; could not say whether any one could, by looking up there from down below; that he did not see any cracks in the bank, nor look for any; that the chunk that fell projected out from the bank about two feet, and when he went back to work he looked, and did not see anything dangerous, and kept on shoveling sand from the bottom near the bank; that Charles Erickson did not say anything to Sam Erickson before he (plaintiff) got hurt; did not hear him say that they ought to take that chunk down. Charles Erickson testified: That he stood right by the plaintiff when he got hurt. That the bank was frozen nearly three feet deep, and that the frozen part had to be removed and piled before the men could shovel. The blasting would loosen the crust, and it made big cracks in it; and after the crust had been removed the men would shovel the sand. The bank was nine feet high. We had just taken what frozen earth the blast threw off, and put it in a pile back of where the men were shoveling. The plaintiff was about ten feet from the east end. It was all solid there. Further to the east end, the crust had not been removed. That he (witness) had been blasting on top where the plaintiff got hurt, and he asked the foreman or boss if he would let him take the crust off. That he was then standing about five feet from the plaintiff. The crack was at the top, and came out in front, and ran towards the east along the bank, and it came down the front of the bank nearly to the bottom. It was about nine feet long, and the piece was standing up. That the foreman said witness was not boss, and to keep still. He told the men to keep to work. At this time the plaintiff went right in there to work. The foreman, Sam Erickson, set him to work there, and the plaintiff went to shoveling and loading the cars from the bank where they had taken off the crust. The foreman saw the crack, and said he did not think it would come down, and plaintiff shoveled there half an hour, when the frozen chunk came down on him. It was 9 feet long and two and a half feet thick. He also testified that he did not tell the...