Porter v. Silver Creek & Morris Coal Co.

• Decision Date: 21 March 1893
• Citation: 54 N.W. 1019,84 Wis. 418
• Parties: PORTER v. SILVER CREEK & MORRIS COAL CO.
• Court: Wisconsin Supreme Court

84 Wis. 418

54 N.W. 1019

PORTER

v.SILVER CREEK & MORRIS COAL CO.

Supreme Court of Wisconsin.

March 21, 1893.

Appeal from circuit court, Douglas county; R. D. Marshall, Judge.

Action by Henry Porter against the Silver Creek & Morris Coal Company. Judgment for plaintiff. Defendant appeals. Reversed.

The other facts fully appear in the following statement by WINSLOW, J.:

Action for personal injuries. The following facts appeared upon the trial by the evidence of plaintiff and his witnesses, and were substantially undisputed: The accident occurred on the defendant's coal dock at West Superior. This is a long dock, extending out into the water so that vessels can come up on either side to be unloaded. Down the center of the dock are two railroad tracks, upon which railroad cars are switched for loading. On both sides of these tracks, and about six feet from the outside rails, are high partitions or bulkheads, built of heavy planks, extending the whole length of the dock. The coal unloaded from the vessels is heaped up against the bulkheads, and from the bulkheads are spouts or chutes by means of which the coal is loaded into the cars. Over the railroad tracks, and high enough so that the cars can run beneath the same, are built several trestles or derricks. These derricks are upon wheels or tracks, so that they can be moved up and down the center of the dock. Upon each derrick is built a small house, called an “engine house.” These houses are above the top of the bulkheads. On the top of each house is a long crane or arm reaching to the outer edge of the dock. These are used for unloading vessels, and for scraping the coal up against the bulkheads. The crane mentioned in this suit was almost horizontal, the outer end being a little higher than the top of the engine house. When used for the purpose for which it was constructed and designed, a cable passed from a drum in the engine house along the crane to the end thereof, over a pulley, and suspended a scraper or shovel. From the bottom of the shovel a cable passed back to another drum in the engine house. Power was applied to these drums by means of levers, and when in use the drums revolved in opposite directions, so that when the upper cable was being let out the lower one was being drawn in, and vice versa. These cables were thus kept almost taut, and were above the bulkheads, and above the heads of any one in the chutes or upon the platform between the tracks and bulkheads. The cables passed into the engine room through a little door or window. The engineer, when operating the drums, can only see the cables, and cannot see men working below in the chute right opposite to the engine. Some time prior to August 6, 1891, a heavy wind storm had blown down the derricks, cranes, and chutes, and had generally damaged the machinery and woodwork on this dock, so that it was necessary to make extensive repairs to the dock and its machinery to prepare it for handling coal The machinery had not been used for a long time prior to the accident. On August 6, 1891, plaintiff was employed by the defendant. Plaintiff was 38 years of age, was a “carpenter and jobber by piece,” and had worked at such business since he was 15 years of age. Plaintiff was employed to make repairs generally, and was informed of what had caused the damage. He assisted in putting up and repairing the bridges. All the men were engaged in making general repairs to this dock. On the morning of August 17th the plaintiff, together with other carpenters, was directed by defendant's superintendent to remodel and repair the coal chutes. They were directed to commence upon the first chute at the south end of the dock. They partially completed the first two chutes about 8 or 9 o'clock in the morning, then skipped several chutes, apparently because cars were in the way, and worked at others further down the dock, and about half past 10 or 11 o'clock returned to finish the first two chutes. The derrick and engine house herein mentioned were opposite the second chute during all the time they were working there. The plaintiff had noticed it. During the time that the plaintiff was away from the first two chutes and working at the other chutes, the engineer, in the course of repairing the machinery, strung or suspended the cables heretofore mentioned, and allowed the slack of one of the cables to drop down into the second chute. When plaintiff returned to finish the first two chutes, and while working in the second chute, the engineer started his engine without warning to get the cables in place, and as part of the work of repairing the dock and getting it in shape to handle coal. The slack of the cable in the chute was drawn up between the legs of the plaintiff, lifted him up, and let him fall upon a brace in the chute, thus causing the injuries complained of, which were quite serious. The plaintiff testified that he did not see the cable lying in the chute. He was not warned that the engine would be started, or the cable lifted, or that the place he was working in was dangerous. The engineer had no special orders to start his engine on that day, or at that particular time. He did it in the course of his usual duties in repairing the machinery of the dock, and getting it in order for the transaction of business. A special verdict was rendered, in which the jury found, in response to appropriate questions, (1) that defendant failed to furnish a reasonably safe place for plaintiff to work in, and failed to use ordinary care to protect him from danger while at work; (2) that such failure was the proximate cause of plaintiff's injury; (3) that the injury was not caused by want of ordinary care on the part of the engineer; (4) that plaintif...