Mueller v. Nw. Iron Co.

• Decision Date: 23 June 1905
• Citation: 104 N.W. 67,125 Wis. 326
• Parties: MUELLER v. NORTHWESTERN IRON CO.
• Court: Wisconsin Supreme Court

125 Wis. 326

104 N.W. 67

MUELLER

v.NORTHWESTERN IRON CO.

Supreme Court of Wisconsin.

June 23, 1905.

Appeal from Circuit Court, Dodge County; B. F. Dunwiddie, Judge.

Action by Herman Mueller, as administrator of the estate of Carl Kannass, against the Northwestern Iron Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This is an action to recover damages for the death of the plaintiff's intestate, July 27, 1902, while in the employ of the defendant in breaking iron ore in certain bins into which the same had been dumped and loaded from the railway cars for storage, and which bins were about 90 feet long and 16 feet wide, and formed by partition walls running east and west and terminating against a stone wall on the east and attached to the trestle bent on the west, and which bins were situated in rows side by side under the elevated railway tracks, supported by certain trestlework known as “trestle bents”; that such death was caused by the partition in the bin in which the deceased was at the time working giving way and causing the ore in the south adjoining bin, together with the materials in such partition, to fall with great force upon him, and thereby causing him great injuries, and then and there killing him. The answer consists of numerous specific denials. At the close of the trial the jury returned a special verdict to the effect: (1) That the partition which gave way was not constructed by the defendant in a reasonably safe manner; (2) that said partition was not maintained in a reasonably safe condition by the defendant; (3) that such condition was known to the defendant, or ought to have been known to the defendant; (4) that such condition was the proximate cause of the death of the deceased; (5) that they assessed the damages sustained by the widow of the deceased at $1,500. From judgment entered thereon for the amount stated in favor of the plaintiff, with costs, the defendant brings this appeal.Roemer & Aarons, for appellant.

Lamoreux & Husting and M. L. Lueck, for respondent.

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

We perceive no error in refusing to direct a verdict in favor of the defendant. The circumstances which will and which will not justify such direction have been so frequently and so recently stated by this court as not to require any restatement here. Tiborsky v. C. M. & St. P. Ry. Co. (Wis.) 102 N. W. 549-551.

2. The court charged the jury, without exception, to the effect that, if they were unable to say, in answer to the first question submitted, whether the partition which gave way was constructed by the defendant in a reasonably safe manner, then that it was their duty to answer that question in the affirmative, and that they could only answer that question in the negative in case they were satisfied and believed from all the evidence that such “partition was not constructed in a reasonably safe manner.” And then, after again calling their attention to the words “reasonably safe,” the court charged the jury that: “The law does not require the defendant company to construct partitions which are absolutely safe, because the phrase ‘reasonably safe’ measures the obligation or duty that rested upon the defendant company in the construction of the partition in question.” To such portion of the charge counsel for the defendant excepted on the ground that the issue was not thereby properly submitted, nor the duty imposed by law on the defendant properly stated. There can be no question but what it was the duty of the defendant to provide and maintain for its employés a reasonably safe place for the doing of their work. Hulehan v. The G. B. W. & St. P. R. Co., 68 Wis. 520, 525, 526, 32 N. W. 529, and cases there cited; Engstrom v. Ashland Iron & Steel Co., 87 Wis. 166, 171, 58 N. W. 241;Cadden v. Am. Steel Barge Co., 88 Wis. 409, 417, 60 N. W. 800;Kennedy v. Lake Superior T. & T. R. Co., 93 Wis. 32, 37, 66 N. W. 1137, and cases there cited. Whether such duty was performed or not was necessarily a question of fact for the jury, under proper instructions from the court. Renne v. The U. S. Leather Co., 107 Wis. 312, 83 N. W. 473. This court has declared that: “The rule requiring the master to furnish his servant with a reasonably safe working place calls only for a working place free from all dangers which a person in the circumstances of the master, in the exercise of ordinary care, ought to know of,...