Murray v. Paine Lumber Co.

• Decision Date: 13 January 1914
• Citation: 155 Wis. 409,144 N.W. 982
• Parties: MURRAY v. PAINE LUMBER CO.
• Court: Wisconsin Supreme Court

155 Wis. 409

144 N.W. 982

MURRAY

v.PAINE LUMBER CO.

Supreme Court of Wisconsin.

Jan. 13, 1914.

Appeal from Circuit Court, Winnebago County; George W. Burnell, Judge.

Action by Walter M. Murray against the Paine Lumber Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded for new trial.

Action for a personal injury. The defendant Paine Lumber Company desired to replace an old wooden veneer vat, about 43 feet long east and west, 16 feet wide, and 8 feet deep, with a concrete one. In order to do so, it became necessary to remove the dirt and rubbish in, and floor of, the old vat, as well as the side walls. For the purpose of facilitating the work of removing the dirt, rubbish, and floor, a scaffold about 4 feet in height from the bottom of the vat, and about 6 feet wide, and 10 or 12 feet long east and west, was built near the south side of the vat, extending to within a few feet of the west end thereof. It was supported by 2x6 joists, which were nailed at the south end to some old piles and at the north end to new 6x6 upright timbers, standing upon the bottom of the vat near its middle. The dirt and rubbish was shoveled onto the scaffold, and from there out of the vat and removed. When the crew, of which plaintiff formed a part, came to remove the floor planks of the vat, they found that the joist of the scaffold at the east end hindered them in handling the planks, so they put in a new joist, nailing it at the south end to one of the old piles, and at the north end to one of the upright timbers in the middle of the vat located further east than the one to which the original joist was nailed. The effect of this was to extend the scaffold somewhat to the east, and boards were laid over the old scaffold and the new joist, and the original east joist was then removed. The jury found that the plaintiff assisted in making this change. There was evidence to show that while the new joist was being spiked to the pile, plaintiff held it, and that one Erdman said, in plaintiff's hearing, “You fellows ought to put in a few more spikes, for it would not hold,” and that some one said in reply that it would hold all right. While plaintiff and another were upon the scaffold assisting in removing planks 3 inches in thickness, 12 to 14 inches wide, and 12 to 14 feet long, which had formed the floor of the old vat, and which were water-soaked and weighed about 250 pounds each, the northeast corner of the scaffold gave way, and plaintiff was precipitated to the bottom and injured. The testimony tends to show that the spikes of the new joist driven into the old pile at the south end pulled out, causing the scaffold to fall. The evidence as to the exact location, dimensions, and construction of the scaffold is contradictory and confusing, but the facts above stated seem to be fairly established by the evidence. The plaintiff and his witnesses denied that there was any change made in, or extension to, the old scaffold, or that plaintiff assisted therein.

By special verdict the jury found as follows:

“(1) Was the plaintiff injured at the time and place alleged in the complaint by the fall of said scaffold? Answered by the court: Yes.

(2) Was said injury caused by any want of ordinary care and prudence on the part of the defendant? Answer: Yes.

(3) If you answer the above question, ‘Yes,’ then was such want of ordinary care and prudence on the part of the defendant the proximate cause of said accident and injury? Answer: Yes.

(4) Was the said platform or scaffold as originally furnished and erected by the defendant in said vat so erected, placed, and constructed by it in a safe, suitable, and proper manner, and so as to give proper protection to the life and limb of persons using the same? Answer: No.

(5) If you answer the above question, ‘No,’ then was such want of safety and suitableness the proximate cause of the accident and plaintiff's injury? Answer: Yes.

(5 1/2) Was said platform altered and changed shortly before the accident? Answer: Yes.

(6) Did the plaintiff Murray assist and take part in altering and changing the said platform or scaffold shortly before the said accident? Answer: Yes.

(7) If you answer question No. 6, ‘Yes,’ then was such change in the construction of the platform the proximate cause of said accident? Answer: Yes.

(8) If you answer either of questions 6 or 7 ‘yes' then did the plaintiff voluntarily use the platform in its changed condition? Answer: Yes.

(9) Did any want of ordinary care and prudence on the part of the plaintiff contribute to the injury? Answer: No.

(10) If the plaintiff is entitled to recover, at what sum do you assess his damages? Answer: One thousand dollars.”

The court entered judgment upon the special verdict of the jury dismissing plaintiff's complaint and cause of action on the merits. From such judgment the plaintiff appealed.

Gill & Barry, of Milwaukee (M. H. Eaton, of Oshkosh, of counsel), for appellant.

Thompson, Thompson & Jackson, of Oshkosh (Charles Barber, of Oshkosh, of counsel), for respondent.

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

[1] After the rendition of the verdict plaintiff moved the court to change each of the answers to questions 5 1/2, 6, and 7 from “Yes” to “No,” and that the plaintiff have judgment upon the verdict as amended by the court, or, in case the court refused to change the said answers, or any of them, that the plaintiff have judgment upon the verdict as rendered. The court refused each and every one of plaintiff's motions, and, upon motion of the defendant, entered judgment in its favor. Whether the trial court in so doing was of the opinion that by its answer to question No. 8 the jury found that plaintiff assumed the risk, or whether the court was of the opinion that the question of plaintiff's assumption of risk was not passed upon by the jury, and it found relative thereto in favor of the defendant, does not appear from the record. Question No. 8 does not in terms constitute a finding upon the issue of plaintiff's assumption of risk. The instructions relative thereto, however, given by the court are broad enough to include such issue. The court said: “If an employé knows that a structure or machine is unsafe and dangerous, he has the right to refuse to use it. If he does use it with such knowledge, he assumes the risk. Now, did the plaintiff go on this platform and use it voluntarily, or was he compelled to go there by order of some superior officer. That is for you to determine from all the evidence, and answer either ‘Yes' or ‘No.’ The words ‘voluntarily used’ mean using the scaffold with full knowledge of a change of condition.” The jury returned an affirmative answer to the eighth question; and, if that stood alone in the special verdict upon the issue of plaintiff's assumption of risk, it would, taken in connection with the above instruction, constitute a finding to the effect that plaintiff assumed the risk. But the court, in submitting the ninth question, which was, “Did any want of ordinary care and prudence on the part of the plaintiff contribute to the injury?” instructed the jury as follows: “An employé is bound to take notice of such dangers as are open and obvious, and are equally open to...