Nicoud v. Wagner

• Decision Date: 27 February 1900
• Citation: 81 N.W. 999,106 Wis. 67
• Parties: NICOUD v. WAGNER.
• Court: Wisconsin Supreme Court

106 Wis. 67

81 N.W. 999

NICOUD

v.WAGNER.

Supreme Court of Wisconsin.

Feb. 27, 1900.

Appeal from superior court, Milwaukee county; J. C. Ludwig, Judge.

Action by John F. Nicoud against J. G. Wagner. From a judgment for plaintiff, defendant appeals. Affirmed.

Action for personal injuries. Plaintiff, while working for the defendant in a structural iron works, was struck and severely injured by the end of a heavy iron beam, suspended several feet from the floor of the factory by a chain attached to a traveling crane, operated by fellow servants to raise the beam to a sufficient height to enable them to move it to an overhead track running at right angles to that on which the crane was located, there to be moved by another appliance, called an “air hoist,” to and through a riveting machine. The claim on the part of the plaintiff was that the crane was insufficient, out of repair and unsuitable for the work, with reasonable safety to employés required to labor in the vicinity thereof; that defendant had notice of the fact; that plaintiff was ignorant of it; that by reason of the use of the defective crane the iron beam was caused to make an unexpected movement whereby it reached to where plaintiff was working, in the due performance of his duties and in the exercise of reasonable care, and struck him, causing the injury complained of. The claim on the part of the defendant was that the crane was in a reasonably safe condition; that the movement of the beam when it struck and injured plaintiff was caused by the lift chain not being attached to the center of the beam as regards weight, or the way the work was done by plaintiff's fellow servants, or by plaintiff's negligence. The following facts were established without substantial controversy: Plaintiff and one or more associates constituted what was called the “Setting-Up Gang.” Their work consisted of setting up parts of iron beams or columns into proper forms, and fastening them together with bolts ready to be taken by the riveting gang to the riveting machine by means of the crane and air hoist. There was a pile of columns prepared, as aforesaid, lying on skids under an overhead track on which the crane was operated. The pile was from 4 to 6 feet high. Plaintiff was a few feet north of the west end of the pile, unscrewing a bolt in a column that lay on a car resting on a track that ran parallel with the pile. The riveting gang consisted of four persons. Their duty in moving a column from the pile to the air hoist, was to place the crane over the center of the pile by moving it on the overhead track; then to engage a hook, attached to the crane pulley at the lower end of the lifting chain, in a chain placed around the center of the column; then, by drawing on the operating chain, to produce the necessary motive power to raise the column free from the pile; and then, by pushing the chain towards the air-hoist track, cause the crane with its load to go to such track. On the occasion in question, two of the riveting gang, by operating the crane, lifted a heavy column, some 18 feet long, from the pile. When the column was clear of the pile the west end swung north and in some way struck the plaintiff's head and severely injured him. There was evidence to prove that one of the crane chains slipped, causing the column suddenly to drop and swing towards where plaintiff was working and strike him, or that the column swung over plaintiff and that the chain then slipped, allowing it to drop and strike him. There was also evidence that a crane on the same track, some days before, operated in the same way, and that the cause was a worn condition of some of the working parts of the device, or the loosening of a setscrew that held one of its wheels in position; that defendant had ample notice of these facts, and that they rendered such an accident as the one that occurred liable to happen. That evidence was disputed. There was also evidence tending to show that the crane in use at the time of the accident was in perfect condition, and that if there was negligence which caused the swinging or dropping of the iron beam, with the consequences complained of, it was wholly in operating the crane. There was evidence that it was the duty of the riveting gang to steady the beam as it was hoisted, and to prevent it from swinging, and that on the occasion in question that was neglected. At the close of the evidence defendant's counsel moved the court for the direction of a verdict, which was denied, due exception being taken to the ruling. The jury found specially, in substance,--

(1) Plaintiff was injured while in defendant's employ by being struck on the head with an iron beam.

(2) The crane by which the beam was hoisted was so defective as to be insufficient when operated with ordinary care.

(3) Defendant knew, or ought to have known, of the fact found in question No. 2, a sufficient length of time before the accident to have prevented it.

(4) Plaintiff, before the time of the accident, was not chargeable with knowledge of the defective condition of the crane.

(5) The defective condition of the crane was the sole proximate cause of the plaintiff's injury.

(6) The crane was operated with ordinary care.

“We assess the plaintiff's damages at $3,500.”

There were several other findings, but they were not inconsistent with the foregoing, and are not material to the questions discussed in the opinion. Judgment was rendered on the verdict in plaintiff's favor.

Van Dyke, Van Dyke & Carter, for appellant.

J. C. Officer and J. W. Wegner, for respondent.

MARSHALL, J. (after stating the facts).

The most important question presented on this appeal was raised below by the motion of defendant's counsel for a verdict in his favor for want of evidence to show that the crane in use at the time of the accident was defective, or that the injury complained of was caused by any such defect or any negligence on the part of the defendant. The same question was raised by a proper motion for verdict.

The rule is elementary that, on appeal, a judgment cannot be reversed for want of evidence to support the verdict on which it is based, unless it clearly appears that there is no credible evidence which, in the most favorable view that can reasonably be taken of it, will support the verdict.

Within the range of reasonable probabilities, viewing the evidence from the standpoint of common sense and experience, the province of the jury to say where the truth lies as to the facts is exclusive, subject only to the discretionary control of the trial court when the finding is clearly against the preponderance of the evidence. When the reasonable probabilities are all one way, so clearly that different minds cannot reasonably differ about it, a jury have no more right to say the truth is otherwise, and have that stand as binding between parties, than the court has in a jury case to say what are the proper deductions of fact to be made from conflicting reasonable evidence or inferences therefrom.

By keeping the principles stated clearly in mind, not invading the legitimate province of the jury or allowing the jury to invade the province of the trial court, or such court to shift its legitimate responsibility onto the jury, our system of jurisprudence in legal actions will demonstrate perfection as near as human wisdom, up to the present time, has been able to attain in that field of civil government.

So it follows, as before indicated, that the judgment appealed from cannot be disturbed as contrary to the evidence, unless there is an entire absence of credible evidence to support some essential fact or facts in the case, and that reasonable minds cannot reasonably differ in that regard, keeping in mind, however, that the trial court, having better facilities for determining that question than this court, has determined it in the negative, and that such determination should prevail unless clearly wrong. Maitland v....