Miller v. Mead-Morrison Co.

• Decision Date: 05 February 1918
• Parties: MILLER v. MEAD-MORRISON CO.
• Court: Wisconsin Supreme Court

166 Wis. 536

166 N.W. 315

MILLER

v.MEAD-MORRISON CO.

Supreme Court of Wisconsin.

Nov. 13, 1917.

Dissenting Opinion and Rehearing Denied Feb. 5, 1918.

Appeal from Circuit Court, Milwaukee County; Oscar M. Fritz, Judge.

Action by Edward Miller against the Mead-Morrison Company. Judgment for defendant, and plaintiff appeals. Affirmed.

This action was brought to recover for personal injuries sustained by the plaintiff while in the employ of the Milwaukee Western Fuel Company. The complaint charges that the plaintiff's injuries were caused by the negligence of the defendant in the construction of a coal handling device which the defendant furnished the Milwaukee Western Fuel Company under a contract with said fuel company. It is further alleged that subsequent to receiving the injuries complained of plaintiff made claim against his employer, Milwaukee Western Fuel Company, for compensation on account of such injuries, under the provisions of sections 2394--1 to 2394--31, Stats., inclusive, and thereby plaintiff's cause of action against the defendant was by operation of law assigned to said MilwaukeeWestern Fuel Company; that subsequently, and on July 21, 1915, said Milwaukee Western Fuel Company assigned and set over to plaintiff said cause of action against the defendant, which is cause of action in tort, and that this plaintiff brings this action as assignee thereof. The action was tried to the court and a jury, and the following special verdict returned:

“(1) Was the manner of fastening the rail, as constructed by the defendant, imminently dangerous to life and limb when used as it was intended to be used? Answer: Yes.

(2) If you answer question No. 1 ‘Yes,’ then answer this question: Did the defendant have knowledge that that manner of fastening the rail was imminently dangerous to life and limb when used as it was intended to be used? Answer: No.

(3) If you answer question No. 1 ‘Yes,’ then answer this question: Was the defendant guilty of negligence in fastening the rail in that manner? Answer: Yes.

(4) If you answer question No. 3 ‘Yes,’ then answer this question: Was such negligence on defendant's part the proximate cause of plaintiff's injury? Answer: Yes.

(5) Did any want of ordinary care on plaintiff's part proximately contribute to produce his injury? Answer: No.

(6) What sum of money will reasonably compensate the plaintiff for the injury which he sustained on July 1, 1914? Answer: Six thousand dollars.”

Motions to change the answer to the second question of the special verdict from “No” to “Yes,” and for a new trial, were made by plaintiff, and denied. Defendant's motion for judgment on the verdict was granted, and judgment ordered accordingly, from which this appeal was taken.

Siebecker, Vinje, and Eschweiler, JJ., dissenting.

Joseph B. Doe and Schmitz, Wild & Gross, all of Milwaukee, for appellant.

Robert R. Freeman, of Milwaukee, for respondent.

KERWIN, J. (after stating the facts as above).

1. The controlling questions upon this appeal are: (1) Whether actual notice to the defendant that the structure furnished to the Milwaukee Western Fuel Company was imminently dangerous was necessary; and (2) whether the evidence was sufficient to support the answer of the jury to the second question of the special verdict that the defendant did not have knowledge that the structure was imminently dangerous.

A very able brief is presented on the part of the appellant, and it may be said that there is lack of harmony in the authorities cited to us in other jurisdictions. It would be difficult, if not impossible, to reconcile all the authorities upon the subject with settled rules of law. We are favored by the learned circuit judge, who tried the case, with an able opinion on defendant's motion for judgment on the verdict, which opinion is in the case, and presents concisely the controlling questions involved, with his conclusion that the defendant was entitled to judgment on the verdict.

We do not consider it necessary to examine authorities in other jurisdictions, because we think the law controlling this case is settled by this court. In the case of Hasbrouck v. Armour & Co., 139 Wis. 357, 121 N. W. 157, 23 L. R. A. (N. S.) 876, referred to and quoted from by counsel on both sides, the rule is laid down thus:

“The manufacturer or dealer who put out, sells, and delivers, without notice to others of its dangerous qualities, an article which invites a certain use, and which article is not inherently dangerous, but which by reason of negligent construction he knows to be imminently dangerous to life or limb, or is manifestly and apparently dangerous when used as it is intended to be used, is liable to any person who suffers an injury therefrom, which injury might have been reasonably anticipated.”

The jury found that the manner of fastening the rail as constructed by the defendant was imminently dangerous to life and limb when used as it was intended to be used, and that the defendant was guilty of negligence in fastening the rail; that the defendant did not have knowledge that the manner of fastening the rail was imminently dangerous to life and limb when used as it was intended to be used.

[1] The particular defect in the structure furnished by the defendant was claimed to be the defective fastening of a guard rail. The contention of the appellant is that, the guard rail having been insufficiently fastened and being imminently dangerous, notice to the defendant was imputed. This contention is contrary to the rule laid down in the Hasbrouck Case. The knowledge referred to in the Hasbrouck Case means actual knowledge, and is in harmony with Zieman v. Kieckhefer E. Mfg. Co., 90 Wis. 501, 63 N. W. 1021, and the weight of authority in other jurisdictions. Huset v. J. I. Case T. M. Co., 120 Fed. 865, 57 C. C. A. 237, 61 L. R. A. 303;Heizer v. Kingsland & D. Mfg. Co., 110 Mo. 605, 33 Am. St. Rep. 482;¹Slattery v. Colgate et al., 25 R. I. 220, 55 Atl. 639;O'Brien v. American B. Co., 110 Minn. 364, 125 N. W. 1012, 32 L. R. A. (N. S.) 980;Kuelling v. Roderick Lean Mfg. Co., 183 N. Y. 78, 75 N. E. 1098, 2 L. R. A. (N. S.) 303, 111 Am. St. Rep. 691;Lebourdais v. Vitrified W. Co., 194 Mass. 341, 80 N. E. 482.

[2] 2. It is further contended by counsel for appellant that the evidence was not sufficient to support the answer of the jury to the second question. Careful examination of the evidence convinces us that the finding is well supported by the evidence. The structure in question was finished and turned over to the Milwaukee Western Fuel Company about 20 months before the injury complained of occurred. The operation of this coal handling device caused considerable strain upon the structure, and moreover it was exposed to the weather conditions during the 20 months after it was turned over to the fuel company and before the injury.

It also appears from the evidence that the guard rail which gave way was quite substantiallyconstructed and fastened. At least it cannot be said upon the evidence produced that defendant as matter of law was bound to know, in view of the manner of construction, that it was imminently dangerous. In reference to the construction the learned trial judge summed up the evidence as follows:

“The only respect in which the railing, which gave way, was defective, and therefore imminently dangerous (as became apparent upon the happening of the accident) was the insufficient manner in which it was fastened at its west end. As to the fastening at that...