McMillan v. Spider Lake Sawmill & Lumber Co.

• Decision Date: 21 October 1902
• Citation: 91 N.W. 979,115 Wis. 332
• Parties: MCMILLAN v. SPIDER LAKE SAWMILL & LUMBER CO.
• Court: Wisconsin Supreme Court

115 Wis. 332

91 N.W. 979

MCMILLAN

v.SPIDER LAKE SAWMILL & LUMBER CO.

Supreme Court of Wisconsin.

Oct. 21, 1902.

Appeal from superior court, Douglas county; C. Smith, Judge.

Action by Dan McMillan, as administrator of the estate of John McMillan, deceased, against the Spider Lake Sawmill & Lumber Company. From a judgment for defendant, plaintiff appeals. Affirmed.

This action was commenced August 21, 1901, to recover damages for the alleged negligent killing of the plaintiff's intestate July 7, 1900. The complaint alleges, in effect, that prior to July 6, 1900, the deceased was in the employ of the defendant as a teamster; that on that day the defendant put him to work unloading logs, which were brought from the woods and hauled on cars by an engine to the mill of the defendant; that on the following day the deceased was engaged in unloading such logs, and while in the act of so doing he fell into a hole about two feet deep, and before he could get up the logs rolled against and over him, injuring him so that he died from the effects thereof on the same day; that for three months prior to the accident the hole had been there, and its existence was well known to the defendant and its servants; that there was slippery bark around the hole into which the deceased stepped; that it was the duty of the defendant to furnish the deceased with a reasonably safe place to work, and that the defendant was negligent in failing to do so, and that it was also negligent in failing to inform the deceased that the place was dangerous and unsafe. The complaint also alleges “that plaintiff's intestate at the time of his death was an unmarried man, thirty-six years of age, and left, him surviving, his mother as next of kin, who was entirely dependent upon him for her support; that plaintiff's intestate at and prior to said injury was a strong, healthy, able-bodied, industrious man, earning and capable of earning $50 per month; that for many years prior to his death he was continuously employed, and, but for his death, he would have, out of his earnings, provided for the support of his mother during the remainder of her life; that by reason of the aforesaid plaintiff has sustained damages in the sum of $2,000.” The defendant answered by way of admissions, denials, and counter allegations, and among others that the plaintiff was injured by, through, and on account of his own negligence or the negligence of his fellow servants. At the close of the testimony on the part of the plaintiff the court granted a nonsuit, and dismissed the complaint, with costs. From the judgment entered thereon accordingly, the plaintiff brings this appeal.W. P. Crawford and Crownhart & Foley, for appellant.

Ross, Dwyer & Hile, for respondent.

CASSODAY, C. J. (after stating the facts).

It appears from the record, and is undisputed, that the deceased was 36 years of age, and a strong, healthy man, and had worked in the woods for about 16 years, and had been in the employ of the defendant in the logging business as a teamster for a year. On the morning of July 6, 1900, he was set at work unloading logs from the cars upon the landing, and continued such work until he was killed in the forenoon of July 7, 1900. During that time he had assisted in unloading something like a dozen train loads of logs. The cars were 20 feet or more long, and the logs were about the same length. The facts attending the accident, as stated by the plaintiff's counsel, are to the effect that at the time of the accident four cars were brought in the train; and that, as the train was being pulled onto the banking ground, the deceased hooked the trip line onto the fit hook so as to unfasten the wrapper chain, and then, when the car was pulled ahead and set in place to be unloaded, he walked forward, and took hold of the trip line, and while standing near the end of the car next to the engine he gave the trip line a jerk, unfastening the wrapper chain, and while stepping back to get out of the way he stepped into a hole about three or four feet deep, and fell to the ground, and before he could get up the logs rolled off the car and over him, and injured him so that he died about three hours afterwards. The soil appears to have been a sandy slope from the railroad track back to the mill pond. The hole was three or four feet across the top and three or four feet deep, and about two feet wide at the bottom. A brother of the deceased, who was sworn as a witness in behalf of the plaintiff, testified to the effect that anybody who looked at the hole could see it; that it was at least two feet down to the bark, and that anybody could see that who looked at it. The law applicable to such a state of facts is too well settled to require discussion. Sladky v. Lumber Co., 107 Wis. 250, 260, 261, 83 N. W. 514, and cases there cited; Williams v. J. G. Wagner Co., 110 Wis. 456, 86 N. W. 157;Kreider v. Pulp Co., 110 Wis. 645, 657-659, 86 N. W. 662. We must hold that the deceased assumed the risk. Id.

2. It also appears from the testimony of the deceased's brother that the deceased left no issue, and was unmarried, and that his father was dead; that his mother was still living in Canada, where she had lived for many years; that she had no property; that the deceased had been accustomed to send his mother $10 a month, when he could spare it; that she never lived in nor became a citizen of the United States; that his father lived nearly all his life at the same place where his mother did, and that he did not think he was ever a citizen of the United States. Upon such undisputed evidence it is claimed on the part of the defendant that under our statute this action cannot be maintained for the benefit of the mother of the deceased, a nonresident alien. The plaintiff claims the right to recover under sections 4255, 4256, of the statute. The true meaning of those sections has been so fully and so recently considered by this court as to require nothing further to be here said, except to state the result and the application to the case at bar. Thus it has been held that: “The right of action given by” those sections “to certain beneficiaries therein named is personal, and the damages are limited to a mere indemnity for the pecuniary injury resulting therefrom to such beneficiary, and the action therefor does not survive the death of such beneficiary, but abates upon his death, and cannot be revived in favor of his administrator.” Schmidt v. Woodenware Co., 99 Wis. 300, 74 N. W. 797. So it has been held that: “The liability created by section 4255, Rev. St. 1898, in case of the death of a person by an actionable injury for which such person could have recovered damages if death had not ensued, is for the benefit of certain relatives of the decedent mentioned in section 4256, Rev. St. 1898, and in default of such relatives there is no liability.” Brown v. Railway Co., 102 Wis. 137, 77 N. W. 748, 78 N. W. 771, 44 L. R. A. 579. In that case it was further held that such right of action is separate and distinct from “the right of action for an injury to the person which survives under section 4253,” even though death ensue from the injury. Id. See, also, Hubbard v. Railway Co., 104 Wis. 160, 80 N. W. 454, 76 Am. St. Rep. 855;Staeffler v. Woodenware Co., 111 Wis. 483, 487, 87 N. W. 480. Here the contention is that the plaintiff, as the personal representative of the deceased, has the right to recover damages for the pecuniary loss which his mother sustained by reason of his death, notwithstanding such right of action did not survive under section 4253. Did the sections of the statutes thus relied upon give such right of action for the benefit of such nonresident alien? The question is not whether the legislature had power to give such right of action, but whether the sections relied upon did give such right of action. It is claimed that the right “to maintain an action and recover damages” is given by the statute in general terms, and is broad enough to include aliens. The constitution declares that “no distinction shall ever...