Manske v. City of Milwaukee

• Decision Date: 15 November 1904
• Citation: 101 N.W. 377,123 Wis. 172
• Parties: MANSKE v. CITY OF MILWAUKEE ET AL.
• Court: Wisconsin Supreme Court

123 Wis. 172

101 N.W. 377

MANSKE

v.CITY OF MILWAUKEE ET AL.

Supreme Court of Wisconsin.

Nov. 15, 1904.

Appeal from Superior Court, Milwaukee County; J. C. Ludwig, Judge.

Action by Frank Manske against the city of Milwaukee, impleaded with another. From a judgment in favor of plaintiff, defendant city appeals. Reversed.

This is an appeal by the city from an order overruling its demurrer to the complaint alleging, in effect, that June 26, 1903, the plaintiff was an employé of the Milwaukee-Western Fuel Company, a corporation engaged in buying and selling all kinds of coal, and having its docks and principal place of business in Milwaukee; that as such employé it was the plaintiff's duty to help load and unload and weigh coal upon the docks of the company; that on the same day, and for some time prior thereto, the defendant Brown was in the employ of the city, and as such it was his duty to assist in the loading and weighing of coal purchased by the city for the use of its fire department; that on the day named Brown was in charge of a certain tug operated and controlled by the city, which was anchored and fastened near the docks of the company in the city; that the company, pursuant to contract with the city, had agreed to deliver a certain quantity of coal to the city for the use of its fire department; that in pursuance of such contract, and to carry away the coal so purchased by the city, Brown called with the tug at the docks of the company; that before loading the coal on the tug it was necessary to weigh the same; that the plaintiff, with the assistance of other employés of the company, loaded a pair of scales on a cart and transported the same to that portion of the docks near which the tug was fastened; that when they arrived there the cart was stopped, and the plaintiff took hold of the scales with his right hand at a small opening at the bottom thereof intended for that purpose; that the plaintiff waited for his co-employés to assist him in taking down the scales, which were very heavy, and required the combined strength of four men to take them safely from the cart; that Brown then and there boasted that he could take the scales down alone without any assistance whatever; that Brown moved toward the scales; that the plaintiff and his co-employés told him to keep away; that such warning had scarcely been uttered before Brown recklessly, carelessly, and negligently pushed the scales along the cart, the bottom of which was inclined in the direction in which the scales were so pushed; that before the plaintiff had opportunity of removing his right hand from said opening the scales were negligently and recklessly pushed over the plaintiff's right hand by Brown, thereby severely bruising said hand and crushing the ring finger of that hand so that the same will have to be amputated; that the plaintiff fully believed that Brown would not meddle with the scales after he had been warned to keep away; that Brown acted so suddenly that the plaintiff, in the exercise of due care, was unable to escape the consequences of Brown's reckless and negligent acts. Then follow several allegations as to the nature and extent of the plaintiff's injury and damages.Carl Runge, City Atty., and W. J. Zimmers, Asst. City Atty., for appellant.

D. J. Dalton and W. F. Thiel, for respondent.

C...