Pern v. Wussow

• Decision Date: 10 January 1911
• Citation: 144 Wis. 489,129 N.W. 622
• Parties: PERN v. WUSSOW.
• Court: Wisconsin Supreme Court

144 Wis. 489

129 N.W. 622

PERN

v.WUSSOW.

Supreme Court of Wisconsin.

Jan. 10, 1911.

Appeal from Circuit Court, Milwaukee County; William J. Turner, Judge.

Action by William Pern against C. F. Wussow. Judgment of nonsuit, and plaintiff appeals. Affirmed.

The complaint is to this effect: January 29, 1908, plaintiff, with others, was working for defendant in cutting down and carrying away a bank of earth which was about ten feet high. The cutting down and, in the main, loading on wagon, was accomplished by use of a steam shovel, managed by several employés. The surface was frozen to a depth of about six inches. Plaintiff and a few associates worked at the foot of the embankment, while others worked at the top, cracking the frozen earth so the shovel would take it. Sometimes pieces of frozen earth would become wholly loosened by the shovel, but would not be taken into it. Such pieces would fall down where the employés were below, thus rendering their place dangerous. Other frozen pieces would, at times, drop from the shovel. Plaintiff's task led him to give such attention thereto, that often he was so located as to render it difficult to observe falling pieces of frozen earth, unless attention was called thereto by some one warning him. Customarily some employé gave warning of the imminence of such danger upon its occurring. No rules were promulgated in respect thereto, though such were necessary for the safety of employés circumstanced as plaintiff was. By reason of neglect in that regard, plaintiff was struck by one of the frozen pieces of earth, severely fracturing his right leg. Issues were joined by answer.

The evidence was to this effect: The situation of the plaintiff's working place and the dangers to which he was subjected were substantially as alleged. Employés were stationed on the bank to crack the crust by use of wedges and hammers. Plaintiff was familiar with all the details of the work. He knew it was dangerous to get in the way of falling lumps of earth. He had been warned in that regard, and all circumstanced as he was knew that they had to be alert in regard to danger from falling pieces of earth and stones. Before he was injured he knew of many pieces coming down. Generally, some one gave warning; sometimes one employé did and sometimes another, but not by rule. In the particular instance no warning was given. Plaintiff did not know of the imminence of danger till he was struck. He knew that men were breaking up the frozen crust at the top of the bank. He knew that if a piece of dirt struck him it would be liable to inflict an injury. He knew that it was a common occurrence for pieces to roll down; also that pieces had rolled down without any one giving warning. He had given warning when he observed a piece of earth liable to endanger any one, and had always received warning from some one whenever in like danger, prior to his injury.

On the case thus made the court granted defendant's request for a nonsuit. Judgment was rendered dismissing the action with costs.Burke, Alexander & Burke, for appellant.

Doe & Ballhorn, for respondent.

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

The rule is invoked that, where there are many fellow servants, some working in one department or feature of an industry, and some in others quite independent thereof, and the situation is such that the operation in one department is quite likely, from time to time, to create peril of personal injury to operators in some other part of the work, unless precautions according to some prescribed method are exercised to avoid...