Meier v. Morgan

• Decision Date: 03 May 1892
• Parties: MEIER v. MORGAN ET AL.
• Court: Wisconsin Supreme Court

82 Wis. 289

52 N.W. 174

MEIER

v.MORGAN ET AL.

Supreme Court of Wisconsin.

May 3, 1892.

Appeal from circuit court, Dane county; R. G. SIEBECKER, Judge.

Action by August Meier against Thomas Morgan, M. J. Hoven, and John Behrend. Judgment for plaintiff. Defendants appeal. Affirmed.

The other facts fully appear in the following statement by WINSLOW, J.:

This is an action to recover for personal injuries suffered by plaintiff by the falling of the east side of an ice house owned by defendants. The ice house was built in March, 1890, and was in four sections or parts, each section being 34 feet by 100 feet, and being practically separate buildings, but joined together, one row of studding answering for the side of two adjoining sections. Each section had its own gable roof. The eaves were about 20 feet from the ground. The studding was of 2 by 6 inch scantling, sheathed inside, the top plate a single 2 by 6 scantling, the roof timbers of 2 by 6 scantling, fastened to the top plate by notches and nailing, and meeting at the center of each division of the roof. The first three sections had been constructed and filled with ice before the fourth or east section (the outside wall of which fell on the plaintiff) was commenced. The buildings were built by one Frederickson under oral contracts with defendants, and there was evidence tending to show that the defendants themselves determined as to a part of the materials to be used and manner of construction of the building, especially as to the single top plate. The defendants, however, claimed and testified that they had nothing to do with the selection of materials or manner of construction. The first three sections had nine tiebeams, reaching from one top plate to the other, but the section that fell had but four or five such beams at the time of the collapse. Before the roof was put on this section the defendants filled it with ice under the personal supervision of Behrend, one of the defendants, and Behrend knew that there were but four or five tiebeams in position when the filling with ice was completed. After the ice was in, Frederickson's men commenced again upon the roof, and upon the morning of the accident had put upon the roof a large number of bunches of shingles, and several men were on the roof at the time. The side of the building fell outwards at about 10 o'clock in the morning, on March 21st. At 8 o'clock on that morning the plaintiff, without warning as to possible danger, was set to work by defendant Behrend on the side of the building which collapsed, throwing up dirt or banking the house. Previously the plaintiff had been employed by defendants upon the lake and about the runways, and had spent one day ditching about the northwest corner of the house, but had not been at work in or about the section which fell. While he was at the work of banking the building, the side fell out without warning, and threw him down, by which he received injuries which he claims are in some degree permanent. The defects in the building, which plaintiff claims caused the collapse, were the single top plate and the absence of the proper number of tiebeams. The plaintiff also claimed and introduced some evidence tending to show that the packing of the building with ice was improperly done; that the pieces of ice were allowed to run with great force against the side of the building, and thus weakened it. The defendants deny all negligence in storing the building with ice, or in any other regard, and claim that the houses were built, by an independent contractor, over whom they had no control, according to his own plans, and with materials of his own selection, and for whose negligence they were not liable. The trial resulted in a verdict and judgment for the plaintiff for $500 damages, from which defendants appeal.H. W. Chynoweth and R. M. La Follette, for appellants.

Olin & Butter, for respondent.

WINSLOW, J., ( after stating the facts).

The building in question was very hastily constructed just as the ice season was closing, and was evidently filled with equal or greater haste. The evidence shows very clearly that the collapse of the side of the building might have resulted from one of three causes, or from two, or all of them combined, viz.: (1) Insufficiency of the single top plate; (2) insufficiency of the tiebeams; (3) negligence in allowing the cakes of ice to run violently against the side of the building while it was being filled, thus weakening the side, and tending to shove it outward.

The legal principle is that, if the collapse was wholly or partially the direct or proximate result of the negligence of the defendants, they are liable for the plaintiff's injuries resulting...