Lipsky v. C. Reiss Coal Co.

• Decision Date: 29 September 1908
• Citation: 117 N.W. 803,136 Wis. 307
• Parties: LIPSKY v. C. REISS COAL CO.
• Court: Wisconsin Supreme Court

136 Wis. 307

117 N.W. 803

LIPSKY

v.C. REISS COAL CO.

Supreme Court of Wisconsin.

Sept. 29, 1908.

Appeal from Circuit Court, Manitowoc County; Michael Kirwan, Judge.

Personal injury action by Ignatz Lipsky against the C. Reiss Coal Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Plaintiff's testimony tended to show that prior to the accident he was a strong, healthy, and able-bodied man; that he had earned from $1.75 to $4 a day; and that he was injured to such an extent that at the trial nearly two years after the accident, he continued to suffer pain in his back, especially when trying to bend over, and was unable to do any kind of work without suffering severe pain.

Defendant in and for some years before November, 1905, maintained a coal dock on the south side of the river at Sheboygan, which consisted of a floor at a convenient height above the water for unloading, and a superstructure consisting of upright posts extending from the ground to about 30 feet above the floor, and generally 12x12 in size. These posts were 12 feet apart in one direction and 24 feet apart in another. They were surmounted by horizontal beams of about similar size, running from one post to the other, both north and south, upon which were laid a system of tracks for tram cars and for certain heavy derricks used in elevating and distributing coal both from vessels and from the floor of the dock. The upright posts were braced to the horizontal beams by 8x8 inch timbers 12 feet in length, placed at an angle of 45 degrees, either spiked or bolted at each end to the upright and the horizontal timbers, which at the time and place in question had been in place about 5 years. The dock had been built by or for the defendant. On November 28, 1905, plaintiff was a common laborer employed by the defendant to shovel coal on the floor of this dock, and, while so engaged, one of these braces, with no apparent present reason, dropped from its place upon plaintiff, causing him serious injuries. There was evidence that the brace was insecurely fastened both to the upright post and the horizontal beam; that is, that it was merely spiked to each, and that the spikes originally penetrated the beams only from one to two inches. There was also some evidence tending to prove that generally through that part of the dock these braces had become parted from the timbers to the extent of one-half or three-fourths of an inch, and that they were subjected to frequent blows from the dropping of coal upon them and to much jar from the running of tram cars and the operation of the derricks. The negligence of the defendant alleged was “failing to provide plaintiff with a reasonably safe place in which to perform his work; that said place was unsafe and dangerous, because of insecure, careless, and negligent fastening of the brace.” The jury, by special verdict, found (1) that the brace which fell was so insecurely fastened to the timbers as to make the place not reasonably safe; (2) that such condition of insufficient fastening had existed for such a length of time that the defendant, in the exercise of ordinary care and vigilence, ought to have known it; (3) that plaintiff's injury was the natural and probable consequence of defendant's failure to discover and repair the defective fastening; (4) that defendant should have foreseen that such insufficient fastening would be likely to result in personal injury to an employé; (5) that ordinary care on plaintiff's part would not have informed him of the insufficient fastening; (6) there was no failure of ordinary care on plaintiff's part which contributed to cause the injury; and (7) damages $5,333. After a motion to reverse the answers to the first, second, third, and fourth questions, or, in the alternative, to set aside the verdict and grant a new trial, judgment was entered upon the verdict, from which the defendant appeals.Charles A. Vilas and Edward P. Vilas, for appellant.

O'Connor, Schmitz & Wild, for respondent.

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

Primarily the appellant contends that the verdict is wholly without evidence in its support. With this contention we can in no wise agree. In the first place, we think that from the mere fall of a timber, the constituent part of a standing building or structure provided as a place in which employés are to work, there arises an entirely reasonable inference that the owner of that building, the employer, has failed in his duty either to make it safe in original construction or to exercise reasonable diligence and care to keep it safe. We can hardly conceive a clearer case for the application of the rule res ipsa loquitur. In addition to this evidence, however, there was evidence of...