Okonski v. Pa. & O. Coal Co.

• Decision Date: 13 May 1902
• Citation: 114 Wis. 448,90 N.W. 429
• Court: Wisconsin Supreme Court
• Parties: OKONSKI v. PENNSYLVANIA & O. COAL CO.

114 Wis. 448

90 N.W. 429

OKONSKI

v.PENNSYLVANIA & O. COAL CO.

Supreme Court of Wisconsin.

May 13, 1902.

Appeal from circuit court, Manitowoc county; Michael Kerwin, Judge.

Action by John Okonski against the Pennsylvania & Ohio Coal Company. From a judgment for plaintiff, defendant appeals. Reversed.

Action for personal injuries suffered by the plaintiff as an employé in the coal yard of the defendant at Manitowoc. That yard was about 500 feet long north and south, bounded on the east by the slip into which vessels entered. Immediately adjoining the water were a series of four towers on tracks parallel to the dock line, some 35 feet high, in each of which was situated a steam engine and its operator. Extending from each of these towers westward to the hard coal shed, a distance of about 150 feet, was a steel cable, upon which the buckets lifted from the vessel were transported by the engine located in the tower. The coal carried in these buckets might be delivered at various points between the tower on the east and the coal shed at the extreme western terminus of the cable. Thus, immediately west of the row of towers was an open space of perhaps 75 feet in width, known as the “platform,” upon which it was customary to dump soft coal, and which at times was piled up over its whole surface therewith, although at the time of the injury it was nearly free from coal. Next to this open space were a series of four hoppers, about 28 feet from the ground, located one under each of the cables and each communicating over screens with a railroad track, onto which cars were customarily run to receive coal which it was desired to put immediately aboard cars. The buckets held about a ton of coal each. The usual method of causing them to dump at one place or another was by placing upon the cable, at about the spot, a device called a “tripper” or “dumper,” which, coming in contact with the latch upon the bucket, caused it to empty. These trippers also ran on trolley wheels along the cable, being secured at the westerly end to the stanchions of the shed and running down by their own weight when the rope holding them was loosened. When it was desired to empty the buckets at any point between the tower and the shed, this tripper was, by certain of the employés, lowered down by this rope to the desired point, and the rope then secured. The method of doing this was for a man to go up to the roof of the shed to handle the rope, and another to stand in his sight upon the platform, and signal to him when the proper point had been reached. At a little after 4 o'clock on the day in question, to wit, the 30th day of November, 1897, the unloading of a new vessel was commenced, and the buckets, which from the preceding vessel had been emptying at their extreme western terminus into the coal shed, were desired to be emptied into the hoppers above spoken of, adjoining the railroad track. Accordingly, one Graham, who is designated as a foreman, directed two of the men on the dock to go up and lower the tripper on the southernmost cable, known as “cable No. 1,” saying that he would signal to them when it had reached the right point. This process was called “spotting.” They untied the rope, cast off a considerable amount of slack, and let the tripper run down. For some reason--whether because they did not keep sufficient control of it, or because Graham did not signal soon enough--it ran down to a point some 10 or 15 feet east of where it should be for the purpose of making the bucket empty into the hopper, and Graham immediately gave signals to haul it back, but before that could be done the engineer in the tower sent a bucket of coal westward on the cable, having no knowledge of what was going on at the other end. The bucket came in contact with the tripper, and its contents were precipitated onto the platform just as the plaintiff was passing under the cable in the performance of his duties in going toward the south end of the yard to aid in pushing down some railway cars. It was in proof that it was a stormy night, and quite dark, but that the yard was lighted by eight electric lights, so that the cable was easily in sight of those walking under it; but there was evidence also that it was customary to fix a gasoline torch near the eastern corner of the hopper when dumping coal there, which enabled the engineer in the tower to see when the bucket approached its destination, and slow it up somewhat before its collision with the tripper. Those torches were supplied, and it was the duty of certain members of the crew in the yard to put them in place when desired by the engineers. None had yet been placed on the hopper near which plaintiff was injured. Plaintiff had worked about coal yards for 12 or 15 years, but upon this particular yard, which varied somewhat in its apparatus, only about 6 days. The work done upon the dock and yard was various, consisting generally in the unloading of coal from the vessels, the distribution thereof to various parts of the yard both by the cables in question and by wheelbarrows, the incidental screening of it, the loading upon railway cars, and the removal of the screenings to other parts of the yard. Plaintiff was a common laborer engaged in such work as was indicated to him, and on the day in question had been wheeling soft coal from the north end of the platform to some other point. At the time of injury, as already stated, he had started with two other men to move cars down onto the railway track adjoining the hoppers. Motion to direct verdict for defendant was overruled, and a special verdict in answer to 27 questions was taken, upon which, after motion for new trial, judgment was rendered in favor of the plaintiff, from which the defendant appeals.

Nash & Nash, for appellant.

O'Connor, Schmitz & Wild, for respondent.

DODGE, J. (after stating the facts).

The most vital question presented among the many assignments of error is whether there is any evidence to warrant the jury in finding any failure on the part of the defendant in its duty to provide a safe place for plaintiff to work and safe appliances to work with. Neither in the complaint nor in the evidence is there any suggestion that either the place or the apparatus was unfit, dangerous, or defective, as originally constructed. The allegation is that the passing bucket was negligently tripped by an agent or agents of defendant; that the tripper or dumper was negligently placed on said cable too far east, by and under the direction of the foreman or manager...