Lounsbury v. Davis

• Decision Date: 14 March 1905
• Citation: 124 Wis. 432,102 N.W. 941
• Parties: LOUNSBURY v. DAVIS ET AL.
• Court: Wisconsin Supreme Court

124 Wis. 432

102 N.W. 941

LOUNSBURY

v.DAVIS ET AL.

Supreme Court of Wisconsin.

March 14, 1905.

Appeal from Circuit Court, Milwaukee County; Orren T. Williams, Judge.

Action by James E. Lounsbury, as administrator of the estate of Carl Strube, deceased, against Charles H. Davis and others, as executors of the estate of James E. Davis, deceased. From a judgment in favor of plaintiff, defendants appeal. Reversed.

This is an action to recover damages upon the ground that defendants' negligence caused the death of plaintiff's intestate. It is alleged that plaintiff is the administrator of the estate of Carl Strube, deceased, and that Edgar P. Davis and Charles H. Davis are the executors of the last will and testament of James E. Davis, deceased; that at the time in question Charles H. Davis and James E. Davis were copartners under the firm name of Davis Bros.; that they were the owners of a stone quarry, and conducted a quarry business at Menomonee, Waukesha county; that Carl Strube, the deceased, was on the 8th day of July, 1901, and for a long time prior thereto had been, in the employ of and engaged in this business of the Davis Bros.; that he was 56 years of age, ablebodied, and healthy, and able, up to the time of his death, to do all kinds of manual labor and to earn the wages of a good and competent workman; that his wife, Hannah, and two minor children, survive him; and that he maintained and supported his family. It is further alleged that the deceased, Carl Strube, was injured through defendants' negligence on July 8, 1901, while engaged in defendants' quarry, the injuries resulting in his immediate death. The negligence charged is alleged to have consisted in a negligent and careless construction and erection of a derrick used in conducting and operating the defendants' quarry business. It is averred that a certain cable or guy rope, running from the top of the center piece or mast of the derrick to the ground, where it was anchored or fastened so as to hold the derrick erect, was so carelessly and negligently fastened or anchored as to make it insufficient and insecure as an anchor and guy, thereby rendering the derrick unsafe and dangerous in conducting the usual business of hoisting stones from the quarry bed into cars for shipment or other purposes. It is claimed that the negligence of the defendants caused the derrick to fall, and thereby injure the plaintiff's intestate, while he was engaged as an employé in conducting their business on the day in question. It is admitted that defendants were a copartnership, and owned the quarry, and were engaged in the stone quarry business; that plaintiff's intestate was in their employ as a laborer in conducting the quarry business at the time and before the accident; and that he died from the effects of the injuries received at the time in question. There is no dispute but that his wife and a number of children, two of whom are minors, survived him, and that he maintained a household, and applied his earnings to the support of himself and family. It appeared in evidence that plaintiff's intestate had been in the employ of the defendants as a workman in the quarry a number of years prior to the time of the accident; that derricks were used in removing the stone from the quarry; that these derricks were moved from ledge to ledge from time to time as the quarrying progressed; and that the derrick in question was held erect by seven guys or wire cables, one end attached to the top of the center piece or mast, and the other end attached to an anchor placed on the ground at a distance of about 125 feet from the base of the derrick. These anchors, with the exception of two, were fastened and weighted down by stones in two tiers divided by the cable, piled on and in front of the anchors or “dead men.” The anchor in question was so fastened and weighted on Saturday, July 6th, under the direction and supervision of Chas. H. Davis, one of the defendants, after the derrick was moved from its former position. Carl Strube did not take part in the moving of the derrick or in fastening the anchor, nor did he subsequently observe how the one which pulled out or any other anchor had been fastened and weighted down by Mr. Davis. Chas. H. Davis and his brother had the charge and management of the quarry and the manner of prosecuting the quarrying. The labor in the quarry was carried on by two sets of workingmen in charge of persons selected by defendants, called “block foremen,” of whom Carl Strube was one, and in the absence of the Davis brothers these block foremen had charge of the employés and the quarrying in their respective blocks. Chas. H. Davis, while testifying as a witness called by defendants, was asked the question: “If there is anything wrong with the derrick, has he [block foreman] any duty connected with it?” This question was excluded by the court upon objection. Charles Strube, a witness for plaintiff, upon direct examination was asked: “Could you tell why this dead man [anchor] pulled out, from your observation and experience--any observation you made of this very derrick in question? (Objection by defendants. Overruled.) Answer. Because there was not stone enough; else it would not have pulled out.” It appeared that at the time of the accident the anchor of this guy cable had become freed by pulling out from under and through the pile of stone placed on and about it, and that when so freed the guy permitted the derrick mast with boom and loaded platform to fall, and that plaintiff's intestate was injured in attempting to escape from the perils of such falling apparatus. The case was submitted to the jury upon special verdict, and it was therein...