Rankel v. Buckstaff-Edwards Co.

• Decision Date: 13 March 1909
• Citation: 120 N.W. 269,138 Wis. 442
• Parties: RANKEL v. BUCKSTAFF-EDWARDS CO.
• Court: Wisconsin Supreme Court

138 Wis. 442

120 N.W. 269

RANKEL

v.BUCKSTAFF-EDWARDS CO.

Supreme Court of Wisconsin.

March 9, 1909.

Dissenting Opinion March 13, 1909.

Appeal from Circuit Court, Winnebago County; George W. Burnell, Judge.

Action by Joseph Rankel against the Buckstaff-Edwards Company. From a judgment for defendant, plaintiff appeals. Reversed.

Marshall, J., dissenting.

This is an action for the recovery of damages for personal injuries alleged to be due to the negligence of the defendant.

The defendant conducts a manufacturing plant for the production of chairs, caskets, etc. In 1907 it was determined to add a sawmill to the defendant's plant. The mill was to be built upon a marshy ground into which spiles were to be driven as a foundation for the structure. The construction of the sawmill required the removal of certain old structures as well as the building of the new one. The defendant company negotiated with one Heidlinger for the removal of the old structures and the construction of the new mill. Heidlinger stated that he could not figure upon the work and undertake it because it involved the destruction of the old and the construction of the new structures, and they arranged that Heidlinger was to receive $5 per day for his time and services. He was to procure whatever workmen might be needed, keep account of their time and their wages, present defendant with a statement showing the amount of money needed to pay the wages of such workmen, receive this amount with his own wages from the defendant, and therefrom pay the men. All the materials to be used in the construction were to be furnished by the defendant. Heidlinger prepared the plans for the mill. The work was started in the early part of the year, when the surface of the ground was frozen to the depth of about two feet. It was necessary to remove the frozen earth in order to be able to drive the spiles for the foundation. Heidlinger procured laborers to excavate and remove the frozen earth, among them the plaintiff. For a few days they worked with crowbars, picks, and shovels. To expedite the work Heidlinger consulted with an officer of the defendant and suggested that the frozen earth might be removed more rapidly and easily if it were broken with dynamite. The officer desired to send for dynamite, but Heidlinger stated that he did not know anything about dynamite and how to set and explode it. He was then directed to consult the owner of a stone quarry outside the city of Oshkosh in order to procure a competent man to do the blasting. Heidlinger consulted the owner of the quarry, and on his recommendation engaged a man in his employ, one Spanbauer, to do the blasting. Spanbauer had worked for the owner of the quarry for five or six years at breaking stone. He had observed the way in which blasting was done at the quarry and had done some blasting there.

Preparatory to the blasting of the frozen earth, the workmen engaged in breaking up the ground drove an iron bar into the ground with a sledge hammer. When the iron had been driven into the ground to the desired depth, the bar was withdrawn, and the workmen retired and took no part in the blasting operation. Spanbauer was the only man at work on the grounds of the defendant who had had any experience with dynamite, and when the hole had been made he charged it by placing the dynamite in the hole, placing the exploding cap on it, making the necessary electrical connections, filling the hole with earth, and tamping it down, and he then exploded the charge. Several charges of dynamite were exploded at the same time by having a series of charged holes connected with the one electrical instrument used to discharge the exploding caps. Four charged holes were connected for the last blast made by Spanbauer. About one of the holes of the earth was not thrown up as about the other three, and Spanbauer then again connected the wires from this hole with his electrical apparatus and ran a current through the wires. No explosion followed, and Spanbauer made an examination of the ground in the vicinity of the hole and saw a crack about 1 1/2 feet from the hole. He attributed the crack to the supposed explosion of the charge in the hole, and told the men to proceed with the digging, that everything was all right. Subsequently plaintiff while working in this vicinity struck the unexploded charge of dynamite with a pick, and by the ensuing explosion lost the sight of both his eyes and suffered other injuries.

There was evidence in the case that a careful workman, with a knowledge of how to blast in frozen ground, in case of doubt as to whether or not a charge had been exploded,with a wooden spoon would carefully remove the earth which had been tamped into the hole, and thus assure himself that the charge had been exploded. When several charges of dynamite are discharged by the same electrical discharge, the several explosions occur simultaneously, and it is impossible to tell from the sound whether all have been exploded. At the conclusion of the plaintiff's evidence, the court refused to grant a nonsuit, but at the conclusion of the defendant's testimony the court directed a verdict for the defendant on the ground that the plaintiff was not in the employ of the defendant at the time of the injury and because the plaintiff was a fellow servant of the blaster, Spanbauer. This is an appeal from the judgment on the verdict as directed.

Eaton & Eaton (H. B. Jackson, of counsel), for appellant.

Williams & Williams (Barbers & Beglinger, of counsel), for respondent.

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

The plaintiff challenges the correctness of the trial court's ruling as to all the questions involved in directing a verdict for the defendant. We will examine them as presented.

The first contention is that the plaintiff was in the employ of the defendant as its servant at the time of the accident. This is denied by the defendant, and it asserts that he was in the employ of one Heidlinger, who, it claims, had contracted to erect the mill for the defendant. The facts adduced establish that Heidlinger was employed by the defendant to attend to the construction of the mill; the defendant to pay him a compensation at the rate of $5 per day for the time he was so engaged. It also appears that the defendant was to furnish all the materials for the structure and for the preparation of the grounds, and that it was to pay the daily wages of all the men needed in erecting the structure. The men were hired by Heidlinger, and he took account of their time and presented it to the defendant's officers, received the amounts due him for wages and due the men whom he had engaged, and paid them, retaining out of the sum so paid him by the defendant the amount due him as compensation for his time at the rate agreed upon by him and the defendant. It is also shown that the defendant's officers exercised a control over the undertaking to the extent of directing its progress, course of procedure, and general management. The evidence does not establish that defendant and Heidlinger agreed that Heidlinger was to have the right to control the erection of the structure and was to be responsible for the cost of the work and the wages of the men employed. It is manifest that the defendant was responsible to all persons engaged on the job, and that Heidlinger merely acted as its agent in securing their services. Under these circumstances it cannot be said that Heidlinger had contracted with defendant to erect the mill according to his own method and without being subject to the control of the defendant except as to the result of the work. Upon the evidence it must be held that the plaintiff was in defendant's employ at the time of the accident. From the foregoing conclusion it follows that Spanbauer was in defendant's employ when he was conducting the operation of blasting the earth at the mill site.

We are persuaded that the defendant exercised reasonable care in selecting Spanbauer as one competent to do the blasting. Whether or not Spanbauer proved to be competent to perform this highly dangerous service does not determine this question. The inquiry is: Did the defendant act upon such information respecting Spanbauer's skill and competency in this regard as that upon which ordinarily prudent men will act under the same or similar circumstances? If so, it fulfilled its measure of duty to its other servants in the selection of employés. It is shown that Heidlinger apprised the defendant's officer in charge of the construction that he had not the knowledge and skill to set the loads of dynamite and explode them. Thereupon he was directed by defendant to obtain for this purpose a competent blaster from among the men engaged in this service in a neighboring quarry. Pursuant to this direction Heidlinger applied to the person operating the quarry, and was informed that Spanbauer was engaged at the quarry and understood the business. It is manifest that the officers of the defendant and Heidlinger knew that persons were engaged in blasting in the quarry, and understood from the representations of the person operating that Spanbauer had performed this service and was skilled in it. Their conduct in this respect was that of reasonable and careful men and acquits them of the charge of negligence in this respect.

It is insisted by respondent that, if the plaintiff was in defendant's employ in performing the service at which he was injured, then defendant is not liable therefor, because it was caused by the negligence of Spanbauer, who was a fellow servant of the plaintiff in the work of blasting. The trial court held this contention of the defendant to be sustained by the facts of the case under the ruling in Wiskie v. Montello Granite Co., 111 Wis. 443, 87 N. W. 461, 87...