Mahar v. Montello Granite Co.

• Decision Date: 05 April 1911
• Citation: 130 N.W. 949,146 Wis. 46
• Parties: MAHAR v. MONTELLO GRANITE CO.
• Court: Wisconsin Supreme Court

146 Wis. 46

130 N.W. 949

MAHAR

v.MONTELLO GRANITE CO.

Supreme Court of Wisconsin.

April 5, 1911.

Appeal from Circuit Court, Marquette County; Chester A. Fowler, Judge.

Action by Walter Mahar against the Montello Granite Company. From a judgment for defendant, plaintiff appeals. Affirmed.

This action was brought by the plaintiff through his guardian ad litem to recover for personal injuries. At the time of the injury plaintiff was about 20 years of age, but at the time of the trial had arrived at majority, and the action was continued by him personally. The plaintiff was engaged in the quarry of the defendant as a driller, and it was his duty when called upon to help push a tram car which was operated upon a track for the purpose of carrying large stones from one part of the works to another. During the process of pushing the car, a large stone which was placed on top of two others fell or slipped from the car and injured the plaintiff. The complaint charges that on the 26th day of May, 1908, plaintiff was at work at his usual occupation in getting out granite blocks; that at about 11 o'clock in the forenoon he was called upon by one Heller to work in his crew and assist in moving a dump car loaded with heavy blocks of granite; that four other persons assisted in moving said dump car; that it was the duty of the defendant to provide suitable and safe appliances in said work and a safe track for the car and to keep said track in repair and free from obstruction; and that the defendant carelessly and negligently allowed to accumulate and remain close to the rails of said track great quantities of broken stone, rubble, and earth so that said stone, rubble, and earth formed a ridge along the outside of said rails very much higher than the rails, sloping abruptly down to the same so that pieces of stone were liable to roll upon the track and the rails thereof by a slight jar or the movement of a car over said track. It is further alleged that the defendant did not provide a suitable dump car; that the one in use was old, worn-out, and out of repair, of insufficient length, top-heavy, and of such faulty and negligent construction that when said car struck an obstruction the jar would cause the car to tilt suddenly backward and the load to slide off; that the car was carelessly and negligently overloaded and the load carelessly and negligently placed thereon by defendant so that it was unsafe to move the car; that the plaintiff had no knowledge of the facts above stated respecting the condition of the track or car or that said car was negligently constructed or loaded, which facts were known to defendant; that, while plaintiff was assisting in pushing the car, a stone or other hard substance slipped or was jarred down from the ridge along the rails of said track in front of said car and obstructed the track; and that the car struck said obstruction causing it to tilt backward, thereby causing a large block of granite loaded upon the top of two other large blocks of granite to slip off backward and injure plaintiff. The answer denies generally the material allegations of the complaint. At the close of the plaintiff's evidence a motion for nonsuit was made by defendant and granted and judgment entered dismissing the plaintiff's complaint with costs in favor of the defendant, from which judgment this appeal was taken.

J. S. Mahoney and Mahoney, Ryan & Kelm, for appellant.

Doe & Ballhorn, for respondent.

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

The evidence tends to prove that the defendant was operating a granite quarry at Montello, in which plaintiff had been at work about two years, first as a water boy 4 or 5 months, next as a tool carrier about 5 months, then as a driller drilling stones near the derrick in the yard for about 8 months, and afterwards and up to the time of the injury drilling for the paving cutters. A derrick was located in the yard at the southerly end of a narrow-gauge track upon which a tram car was operated for the purpose of moving stones as required in the performance of the work. The plaintiff worked at the time of the injury and for some months prior at the northerly end of this track a short distance from said derrick. He had a clear view of the length of this track and passed up and down it, walking between the rails, several times a day; the stone workers were in the habit when working on the side of this track of throwing the grout or rubble stone across on the other side, so that such rubble stone was piled up along the side of the track to a distance of 3 or 4 feet high and formed a ridge which was continuous along the line of the track opposite where the stonecutters were at work. This ridge or pile of rubble stone came within about a foot, as the evidence tends to show, of the rail of the track. The track was about 2 1/2 feet wide, and the dump car operated thereon was a small affair about 6 feet across the track and 4 1/2 feet the other way, the bed of the car being about 4 1/2 feet above the rails, the distance between the center of the front axle and the rear axle was a little over 3 feet, and the bar upon which the bed of the car was fastened had a play of about an inch or an inch and a half backward and forward. One Heller had charge of moving the stones on this car, and at the time of the injury had loaded three large stones, two upon the bed of the car and the other on top of these two; the lower stones weighed about 400 or 500 pounds each, and the third or top stone about 300 pounds. The stones were loaded upon the car by Heller by means of a derrick, and after being loaded Heller called plaintiff, who was close by upon the track, to help push the car, and plaintiff in connection with four others went behind the car to push it; plaintiff being in the middle and pushing on the lower part of the frame. After the car had been pushed a short distance, the wheel struck a small stone about two inches thick, which was upon the rail, causing the car to jar and the top stone to slip off, falling upon plaintiff's leg, causing the injury.

There is no direct evidence as to how the small stone came upon the track; the theory being that it was thrown there by the stone-cutters, or that the jar of the car caused it to...