Mielke v. Chi. & N. W. Ry. Co.

• Decision Date: 25 April 1899
• Citation: 103 Wis. 1,79 N.W. 22
• Court: Wisconsin Supreme Court
• Parties: MIELKE v. CHICAGO & N. W. RY. CO.

103 Wis. 1

79 N.W. 22

MIELKE

v.CHICAGO & N. W. RY. CO.

Supreme Court of Wisconsin.

April 25, 1899.

Appeal from circuit court, Sauk county; R. G. Siebecker, Judge.

Action by Gustave Mielke against the Chicago & Northwestern Railway Company to recover damages for injuries sustained by the plaintiff while working in defendant's stone quarry at Ableman, Wis. His right to recover is based upon the following facts: The face of the quarry was about 100 feet from top to bottom. The method of quarrying was to clear off a space at the top 6 or 8 feet wide, then drill holes 4 or 5 feet deep about 6 feet from the face of the ledge, and, after exploding the blast, bar off the rocks loosened by the explosion, and to continue working down in that manner until the bottom was reached. This left the face of the quarry nearly or quite perpendicular. The fragments and rubbish from continued operations were allowed to accumulate at the foot of the cliff, reaching up 40 or 50 feet, and slanting at an angle of about 45 degrees. The quarry faced the west. At the time of the accident, plaintiff was on a ledge which had been worked down 30 or 40 feet from the top. This ledge extended north and south, but had been worked part way across the face of the quarry, so that at the north end of the ledge there was a shoulder, or set-off, extending to the top of the quarry. There had been no work done on this ledge, for three or four months prior to the accident, until the afternoon before. At that time plaintiff and two other workmen drilled a hole near the back of the ledge, at the corner next to the shoulder, and the blast was exploded that day, but no further work was done. On the morning of the following day, the plaintiff, with eight other workmen, by direction of the superintendent, went upon the ledge to bar off the stone loosened by the explosion of the night before. While so at work, a large piece of rock, 4 or 5 feet long, 1 foot thick at the bottom, and about 2 1/2 feet wide, fell from the north face of the shoulder or set-off, about 7 or 8 feet above the ledge, killing one of the workmen, and precipitating plaintiff off the ledge into the hole, causing the injuries complained of. The piece of rock which fell seems to have been separated from the adjoining rock by a thin clay seam, which could be seen from the face of the cliff, but was not discernible from the ledge. The evidence showed that the clay seams extended over the face of the quarry in different places, but did not run in any uniform direction, or in a straight course. The negligence complained of is based upon the failure of the defendant to furnish a reasonably safe place for plaintiff to work. At the conclusion of the plaintiff's evidence the defendant moved for a nonsuit, on the grounds that the evidence did not show that the defendant was guilty of any want of ordinary care, and that the law of safe place did not apply under the circumstances in proof. The court granted the motion for a nonsuit, and from a judgment dismissing the complaint the plaintiff appeals. Affirmed.Herman Grotophorst, Rufus B. Smith, and R. M. La Follette, for appellant.

Fish, Cary, Upham & Black, for respondent.

BARDEEN, J.

If we understand the appellant's contention, it is that defendant is liable for plaintiff's injuries, because it failed to furnish him with a safe place to work. The proposition that it is the duty of the master to furnish the servant a reasonably safe place in which to perform his labors has been laid down so many times by this court that it is unnecessary to cite decisions to support it. There are, however, certain correlative obligations of the servant which limit the doctrine stated. The servant is bound to know, and is said to have assumed, all such dangers of the employment as were open and obvious, and such as he could have discovered by reasonable attention. Osborne v. Coal Co., 97 Wis. 27, 71 N. W. 814. In that case it was said: “Such risks he fails to appreciate at his own peril. As against him, the defendant had the right to carry on its business in such place and manner, and with such appliances, as best suited its choice or...