Luebke v. Berlin Mach. Works

• Decision Date: 23 October 1894
• Citation: 60 N.W. 711,88 Wis. 442
• Parties: LUEBKE v. BERLIN MACH. WORKS.
• Court: Wisconsin Supreme Court

88 Wis. 442

60 N.W. 711

LUEBKE

v.BERLIN MACH. WORKS.

Supreme Court of Wisconsin.

Oct. 23, 1894.

Appeal from circuit court, Rock county; John R. Bennett, Judge.

Action by Frederick Luebke, as administrator of John Luebke, deceased, against the Berlin Machine Works. Judgment for plaintiff, and defendant appeals. Reversed.

This action was brought by the plaintiff, as administrator of his deceased minor son, John Luebke, to recover damages sustained by the plaintiff by reason of the death of the said John Luebke, caused, as it is alleged, by the negligence of the defendant when he was in its employ; and the plaintiff obtained a verdict and judgment, from which the defendant appealed. The defendant owned and operated a foundry and machine shop situated on and partly over a mill race along Rock river, at Beloit. From a platform of the building a foot bridge extended across the race to the east side of it, and it was used by those who had charge of the power to go to and from the shop and foundry to the power house on the east side of the race. The bridge consisted of three lengths of planks, supported by piles driven in the race and cross pieces 2x4 or 2x6 spiked to the piles; and at the east end and in the middle it was two planks in width, but at the west end next to the shop and foundry there was but one plank, about ten inches wide, fastened at the west end about ten inches below the platform. The planks were two inches thick, and at the east end rested on the bank of the race about one foot above the general level, and there was no railing along the bridge. The core room of the foundry, in which the plaintiff's intestate, with other boys employed by the defendant, worked under a foreman, making cores for castings, was about 160 feet south or below the bridge, and they required and used considerable flour in making them, which they obtained at a flour mill on the opposite or east side of the race, about 100 feet above the east end of the bridge. There was a wagon bridge a short distance below and south of the core room, which was wide and safe, available to and sometimes used by the boys for getting flour from the mill. The evidence tends to show that they were never directed to go any particular way to get flour or use the foot bridge, but went either way, as they chose; that the defendant knew of and permitted the use of the foot bridge by the boys for that purpose; and that the wheelbarrow they used was an old rickety one, and not a safe appliance for the purpose of bringing flour over the foot bridge. When the boys used the foot bridge to get flour, they passed from the core room into the foundry, thence into the machine shop, and thence to the door opposite the foot bridge, and out upon a platform upon and over the foot bridge to the flour mill. When they went over the wagon bridge below, they passed from the core room into the foundry, thence into the room next the core room in the front of the foundry, opening upon the street, and thence across the wagon or highway bridge over the race and along the highway up to the mill. In returning with a load of flour, they ran the wheelbarrow up a single plank upon the foot bridge; but at the west end of it, next the shop, where there was but a single plank, some one was required to lift the barrow upon the platform. It was claimed on the part of the plaintiff, and there was evidence tending to support it, that the bridge was not a reasonably safe passageway for use by the boys in bringing flour from the mill to the foundry, more particularly by reason of the manner of its construction and narrowness and want of railing, and that the wheelbarrow was not a safe vehicle for bringing flour, but was old and rickety, and its use for that purpose was unsafe. The plaintiff's intestate, about the 15th of September, 1892, of the age of nearly 16 years, had been in defendant's employ for several months, from time to time, and then was, and had been since the previous June, at work in the core room, and it was his duty to make cores, attend to the fires, and go after flour, etc. On the day in question, he went over to the mill with the wheelbarrow to get flour. It does not appear that he had been specially directed to do so, and no one seems to have seen him until he reached the mill and asked for flour. The miller put a bag of flour on the barrow, and asked him “which way he was going with the flour; if he was going over by the wagon bridge or the foot bridge. He answered he would go by the foot bridge, and I advised him, I told him it was better he would go around by the wagon bridge. He said if he would dump the flour in he would come back, and get another sack; that is all that was said. He went on, and I went into the mill.” It does not appear that he was afterwards seen alive. The alarm was given that some one was in the race, and he was taken out dead on the east side thereof. The barrow was nearer the east side than the west side of the race, and the evidence tended to show that he must have fallen in about the middle of the foot bridge. The plaintiff claimed that the bridge across which the boys were required or accustomed, with the knowledge of the defendant, to bring flour in the wheelbarrow, was dangerous and unsafe, by reason of improper and negligent construction, and was an unsafe place for passage by one so young as the deceased; and that the wheelbarrow with which he was furnished was an unsafe and insufficient appliance, as the defendant well knew; and that the defendant negligently omitted to inform or caution the deceased in respect to the use of said bridge and barrow, as it should have done; and that by reason of the premises,...