McKillop v. Superior Shipbuilding Co.

• Citation: 127 N.W. 1053,143 Wis. 454
• Parties: MCKILLOP v. SUPERIOR SHIPBUILDING CO. ET AL.
• Decision Date: 25 October 1910
• Court: United States State Supreme Court of Wisconsin

143 Wis. 454

127 N.W. 1053

MCKILLOP

v.SUPERIOR SHIPBUILDING CO. ET AL.

Supreme Court of Wisconsin.

Oct. 25, 1910.

Appeal from Circuit Court, Douglas County; A. J. Vinje, Judge.

Action by John A. McKillop against the Superior Shipbuilding Company and another. From a judgment dismissing the complaint, plaintiff appeals. Affirmed.

This action was brought to recover for personal injuries. The allegations of the complaint, so far as material here, are that the defendant Superior Shipbuilding Company now is, and that during all of the times hereinafter mentioned it has been, a corporation duly organized and existing under and pursuant to the laws of the state of Wisconsin, with its principal office and place of business in the city of Superior, county and state aforesaid; that, among other things, its business during all of said times consisted in building, constructing, overhauling, and repairing ships, sailing vessels, and other water craft; that, in connection with its business, it at all times owned, maintained, operated, and used large shops, factories, and the usual tools and appliances in connection therewith, situate in said city of Superior; that among other appliances during said times it owned, maintained, and used and operated what is commonly known as a “swing pile driver” in said city and its works, consisting of a foundation, constructed of wood and iron, so constructed as to turn upon a central point or pivot, and of an upright structure of considerable height, in which worked and operated the weight known as the driver, and of two upright bents, each of which consisted of two upright timbers, each about one foot square and about twelve feet high, and about eight feet apart, with a cross-timber or cap connecting the two upright timbers, each about twelve inches square and eight feet long, which timbers were fastened to said foundation in said upright position, and in connection with and as a part of said swing pile driver was an engine with which the weight was raised and lowered; that on the 7th day of November, 1908, plaintiff was in the employ of the defendant company for hire as a laborer, being one of the pile driving crew herein referred to, engaged in the performance of his duties at defendants' works in said city of Superior; that on said date and for a long time immediately prior thereto the defendant William Bennett was in the employ of said defendant company as foreman of the crew engaged in the work of operating said pile driver and driving piles with the same, and that said defendant Bennett at all times had full authority over said crew at said place, to whose orders and directions said crew were at all times subject; that on said 7th day of November, 1908, the defendants, through said Bennett and crew, were engaged in taking apart and taking down and removing said swing pile driver; that on said 7th day of November, 1908, at about half past 11 o'clock in the forenoon, the defendant Bennett and said crew were engaged in the work of removing from its position one of said two bents; that the other bent was then and there in its position, standing erect upon said foundation, and that the bent which the defendants were then and there removing was when the plaintiff was ordered by the defendant Bennett to assist in said work standing erect and in said position, but that the fastenings holding the same in position had been removed preparatory to lowering the same by means of ropes and appliances from its position down to the ground; that the defendant Bennett, and before plaintiff was ordered by the foreman to do the work hereinafter described, without any notice to or knowledge on the part of plaintiff of such facts, had also removed the fastenings holding said other bent in position, so that said bent was likely to fall and injure plaintiff or any other employé working near the same, unless said bent was or had been securely fastened in said position while said other bent was being lowered, all of which facts were well known to defendant Bennett and none of which were known to the plaintiff, and that the plaintiff did not have any means or knowledge of ascertaining such facts, and that the defendant Bennett did not give him any notice or warning of such conditions; that with said bent securely fastened then the work of lowering and removing the bent which was being lowered and removed at the time of the accident was safe and free from any danger; that the defendant Bennett, prior to the time plaintiff was ordered to do the work hereinafter referred to, had looped a rope around the cap or cross-piece of the bent that was not being lowered, and had tied one end of such rope to the foundation of said swing pile driver, at a point near the bent that was to be lowered, and had fastened the other end of the rope in a similar position on the opposite side of said bent, and that the said defendant had then and there carelessly, negligently, and wrongfully failed to tie or fasten said rope to said cap or cross-piece so as to prevent said bent falling or being moved from its position, and had carelessly, negligently, and wrongfully so looped said rope over said cross-piece or cap or had placed the same in said position in such manner that it would not hold and could not hold said bent in its position, and had carelessly, negligently, and wrongfully left the same standing without any fastening or anything holding the same so as to prevent the same falling, all of which facts were well known to the defendant Bennett and none of which were known to the plaintiff, and that the plaintiff did not have any means of ascertaining such facts; that the defendant Bennett before calling plaintiff to assist in lowering said bent had fastened a rope to the cross-piece or cap of the bent to be lowered, and had caused the same to be extended therefrom across the top of the cap or cross-piece of said other bent, and then had passed said rope down and beyond said second bent, and fastened the same to the...