Renne v. U.S. Leather Co.

• Decision Date: 21 June 1900
• Citation: 83 N.W. 473,107 Wis. 305
• Parties: RENNE v. UNITED STATES LEATHER CO.
• Court: Wisconsin Supreme Court

107 Wis. 305

83 N.W. 473

RENNE

v.UNITED STATES LEATHER CO.

Supreme Court of Wisconsin.

June 21, 1900.

Appeal from circuit court, Clark county; James O'Neill, Judge.

Action by Clyde Renne, by his guardian, against the United States Leather Company, for injuries received while in the employ of defendant. From a judgment for plaintiff, defendant appeals. Reversed, with the option on the part of the plaintiff to remit a portion of the verdict awarded.

Bardeen and Marshall, JJ., dissenting.

Cate, Sanborn, Lamoreux & Park, for appellant.

Spencer M. Marsh and Olin & Butler, for respondent.

CASSODAY, C. J.

This action was commenced February 17, 1899, to recover damages for personal injuries sustained by the plaintiff October 8, 1897, while in the employ of the defendant, and riding upon the top of a freight car, for the purpose of setting the brake thereon, while being backed into its yards, by being swept from the top of the car by an exhaust pipe extending horizontally from its boiler house to its beam house, over its side track or tracks, and thereby thrown down under the car and injured. The defendant answered by way of admissions, denials, and counter allegations. Among other things, the answer admitted, in effect, that the defendant was a corporation duly organized and existing under and by virtue of the laws of New Jersey, having its principal office of business at New York; that at the times mentioned it operated a tannery in the city of Stanley, in Chippewa county, Wis.; that its plant consisted of several buildings, among which were two buildings located a considerable distance apart, and respectively known as the “beam house” and “boiler house”; that at a considerable distance from the two buildings, and easterly therefrom, were located the railway tracks of the Wisconsin Central Railway Company; that the defendant owned and operated side tracks extending from the Wisconsin Central Railway tracks to such plant; that one or more of the side tracks passed between the beam house and the boiler house; that the defendant also at the time owned and operated an engine, with which it propelled to its plant, over its side tracks, such cars of freights as might be shipped to it over the Wisconsin Central Railway; that during all the times mentioned the defendant maintained two steam or exhaust pipes, extending horizontally over the boiler house to the beam house, over such track or tracks, which passed between those buildings; that for a short time prior to October 8, 1897, the plaintiff was in the employ of the defendant at such plant as messenger or boy of all work, as should be required of him; that by reason of such employment it became and was the duty of the defendant to provide him a reasonably safe and suitable place in which to perform the duties required of him, and to warn him of any danger incident to the performance of such duties, and also not to expose him to unnecessary or unusual hazards: that October 8, 1897, the plaintiff climbed to the top of a car then being moved upon such side tracks, and then being moved over one of such side tracks, which passed between the beam house and the boiler house, by direction of the engineer of the defendant then in charge of such engine; that such car was pushed or kicked westerly by such engine, in charge of such engineer, and passed under the lower steam or exhaust pipe; that the plaintiff, being upon the top of the car, was knocked off the car, and between the car and the engine, and was run over by the engine, and by reason thereof sustained the injuries set forth in the complaint; that the car upon the top of which the plaintiff so climbed was of greater height than ordinary freight cars, but that cars of such height and of different heights were frequently handled by the defendant at its plant; that it had no knowledge or information whether the plaintiff had knowledge of the height of the car, or of the proximity of the lower pipe to the top thereof; that the plaintiff received the injuries complained of and set forth in the complaint by reason of being thrown or knocked from the top of the car as set forth in the complaint; that August 31, 1898, the plaintiff caused to be duly served upon the defendant a notice in writing of such injuries, etc., as required by the statute. And the answer alleged that all such injuries sustained by the plaintiff were suffered by him solely through and by means of the carelessness and negligence of the plaintiff, and not otherwise. At the close of the trial the jury returned a verdict in favor of the plaintiff, and assessed his damages at $20,000. From the judgment entered thereon for that amount and costs, the defendant brings this appeal. In addition to the facts thus admitted in the answer, it appears from the evidence, and is undisputed, that about 270 feet east of the exhaust pipe in question was the west end of the defendant's office, with the scales under the main track, just north of it; that 39 feet west of the office was a switch to a side track coming from the west, along the north side of the boiler house and the bark mill, into the main track; that 26 feet north of the office was the beam house, running east as far as the office, if not further, and west to a point a few feet west of the exhaust pipe in question; that the beam house was north of all the tracks, and 321 feet in length; that a side track came in from the east, and ran along the southerly side of the beam house, towards the west, and into the main track, about 190 feet west of the office; that 48 feet east of the exhaust pipe was a switch, where the hide-house side track came from the west into the northerly side of the main track; that from the exhaust pipe west on the hide-house track, 120 feet, was a point opposite the center of the acid or chemical platform,--a platform 27 feet long; that the grade from the west end of the scales or office to the hide-house switch ascended towards the west at the rate of about 1 foot in every 100 feet; that from that switch to the chemical platform it ascended at the rate of about 2 feet in every 100 feet. It is substantially stated by the defendant's attorneys that the freight car in question (No. 10,216), loaded with acids belonging to the defendant, was on the Wisconsin Central tracks; that the defendant's railroad engineer, Payne, with the defendant's engine and the plaintiff, went after that car on the day of the accident, the plaintiff riding on the engine with the engineer; that when the car was reached the plaintiff got off from the engine and coupled the car to the engine, and then got onto the engine again; that the car was then taken to the scales, and the engine uncoupled from the west end of the car and recoupled to the east end of the car; that it was then pushed to the place of unloading at the chemical platform; that the hide-house switch, 48 feet east of the exhaust pipe mentioned, was opened by the plaintiff to let the car and engine out from the main track onto the hide-house track; that the plaintiff knew that the car was to be pushed by the engine onto that track and under the exhaust pipe to the chemical platform, to be there unloaded; that after opening the hide-house switch, and when the car started to go upon the hide-house track, the plaintiff, without the knowledge of the engineer, Payne, climbed up the side ladder at the northwest corner of the car to the top thereof, and then walked eastward towards the east end of the car; that in doing so his back was towards the west,--towards the exhaust pipe,--the car being in the meantime pushed towards the pipe as fast as a man could walk (the plaintiff testified, as fast as a man could run); that the plaintiff continued to face the east, and his back towards the pipe, west of him, until the car went under the pipe, and he was struck by the pipe across the shoulders, and thereby knocked from the top of the car onto the ground, and run over by the engine and permanently injured. Such is a general summary of the situation and circumstances under which the accident occurred.

1. Error is assigned because the court admitted testimony tending to prove that the exhaust pipe in question might, at small cost, and without injury to its efficiency, have been raised so as not to interfere with the defendant's employés riding upon the top of its freight cars. The reason given for such contention is that, as against the plaintiff, the defendant had the right to construct and locate the pipe as, in its judgment, would best accommodate its interest. The cases cited from this court in support of such contention all turn upon the assumption of risk, which will be considered later. Naylor v. Railway Co., 53 Wis. 661, 11 N. W. 24;Casey v. Railway Co., 90 Wis. 113, 62 N. W. 624;Guinard v. Knapp, Stout & Co. Company, 95 Wis. 482, 70 N. W. 671;Osborne v. Coal Co., 97 Wis. 27, 71 N. W. 814;Mielke v. Railway Co., 103 Wis. 3, 79 N. W. 22. And yet in all these cases the duty of the master to furnish a reasonably safe place in which the servant may perform his labor is recognized. Thus, in the last case cited, Mr. Justice Bardeen, speaking for the whole court, said: “The proposition that it is the duty of the master to furnish the servant a reasonably safe place in which to perform his labors has been laid down so many times by this court that it is unnecessary to cite decisions to support it.” The same is true of cases cited by counsel for the defendant from other states. Shanny v. Mills, 66 Me. 420; Wormell v. Railroad Co., 79 Me. 397, 10 Atl. 49;Batterson v. Railway Co., 53 Mich. 125, 18 N. W. 584;Ragon v. Railway Co., 97 Mich. 265, 56 N. W. 612. In the first of these cases it was held that: “It is the master's duty not only to provide suitable machinery for the use of the servant, and that which shall impose upon the servant no other or greater danger than is naturally incident to the business or employment, but to exercise all reasonable care...