Radmann v. Chi., M. & St. P. Ry. Co.

• Decision Date: 05 November 1890
• Citation: 47 N.W. 97,78 Wis. 22
• Parties: RADMANN v. CHICAGO, M. & ST. P. RY. CO.
• Court: Wisconsin Supreme Court

78 Wis. 22

47 N.W. 97

RADMANN

v.CHICAGO, M. & ST. P. RY. CO.

Supreme Court of Wisconsin.

Nov. 5, 1890.

Appeal from circuit court, Waukesha county; A. SCOTT SLOAN, Judge.M. N. Lando, for appellant, cited the following cases as to the direction of a verdict: In re Kipp, 29 N. W. Rep. 517;Gower v. Railway Co., 45 Wis. 182;Schoener v. Insurance Co., 7 N. W. Rep. 544;Sutton v. Wauwatosa, 29 Wis. 21;Hoye v. Railway Co., 23 N. W. Rep. 14;Strahlendorf v. Rosenthal, 30 Wis. 675;Behm v. Armour, 15 N. W. Rep. 806;McCarthy v. Thorn, 5 N. Y. Supp. 917; Hunt v. Walch, Id. 802; Anderson v. Railroad Co., 41 N. W. Rep. 104;Baldwin v. Railway Co., 33 N. W. Rep. 356;Bowen v. Railway Co., 8 S. W. Rep. 230.

John T. Fish, for respondent.

ORTON, J.

The facts are substantially and briefly as follows: The defendant company owned and operated in the city of Milwaukee, among other elevators, elevator B, for loading, unloading, storing, and shipping grain. The elevators are subdivided into stalls or divisions for unloading and dumping grain from cars. In order to unload the grain from the cars into elevator B, a certain shaft running through the entire length of the elevator is set in motion by a steam-engine, which shaft is provided at each stall or division with a pulley, around which is a coil of heavy rope, attached to a sort of bifurcated chain, of which the ends are fastened to a wooden shovel or scraper. The operator of said shovel has to take hold of it by two ears in the back of it, and pull it into the car to be unloaded, and, by so pulling, the rope yields and unwinds from the pulley, and follows the operator into the car, and then he sticks the shovel into the grain, and, by giving a slight pull or jerk on the rope above the chain, it sets in motion a certain clutch and catch, which causes the pulley on the shaft to pull the rope, and rewind the same around the pulley by inverse motion, and thus moves the shovel with the grain out of the car into the dumping-bin. Any common laborer can operate such a shovel with ease if the machinery and gearing are in good and proper condition. The plaintiff had been employed by the defendant to manage and work such a shovel in different stalls of said elevator, and had no trouble in operating the same; and afterwards, and on the day of the accident, he was employed to work in stall No. 8, in working one of the two shovels in that stall. The other shovel was worked by one Peter Hyland, who had no trouble in working it. All the shovels in the elevator, except the one on which the plaintiff was employed, and the machinery attached to the same, worked easily and properly. The plaintiff testified, in substance, that the shovel on which he was employed on that day did not work well. It was apparently out of order. If it is in order, the operator will give a little jerk on the rope, and the shovel at once starts, and the rope winds up on the pulley. At this time the plaintiff gave a little jerk on the rope, and it did not start, and he gave several jerks on the rope, and it did not work. The rope nearly all came down into the car, and in some way his right foot became entangled in the loose coils of rope, without his knowledge, when suddenly the clutch wheel caught the catch, and started the machinery, and the rope was swiftly wound up, dragging the plaintiff by that foot to where it was so twisted and mangled that it had to be amputated. The plaintiff had never had any trouble before in working a shovel, and did not know that this one was out of order when he began to work it. He could always before give a little jerk on the rope, and the shovel would start. The said Peter Hyland, as a witness for the plaintiff, testified substantially as follows: He was working a shovel in the same stall. The shovel the plaintiff was working stopped, and would not go. He told him to pull the rope, and he did so, and it stopped again, and he told him again to pull the rope, but it did not start, and then in a little while it started suddenly, and tripped the plaintiff up. He could not say how long that shovel had been out of order, for he had not worked in that stall for two years. It did not work at this time. August Butzlof, another witness for the plaintiff, testified substantially as follows: He worked for the defendant in another elevator at the time, and before that he worked in the stall where the plaintiff was injured, three or four days. The shovel the plaintiff worked was then out of order. He did not know what was the matter with it. It stopped too often. Sometimes it worked well, and then it would stop. It was in that condition every time he worked in that stall. Sometimes, when it would not start, he would stand behind the shovel, and give...