SanDeen v. Willow River Power Co.

• Court: Wisconsin Supreme Court
• Writing for the Court: FRITZ
• Citation: SanDeen v. Willow River Power Co., 214 Wis. 166, 252 N.W. 706 (Wis. 1934)
• Decision Date: 06 February 1934
• Parties: SANDEEN ET AL. v. WILLOW RIVER POWER CO.

214 Wis. 166

252 N.W. 706

SANDEEN ET AL.

v.WILLOW RIVER POWER CO.

Supreme Court of Wisconsin.

Feb. 6, 1934.

Appeal from a judgment of the Circuit Court for St. Croix County; George Thompson, Circuit Judge.

Action by Carl Sandeen and others against the Willow River Power Company. From an adverse judgment, defendant appeals.--[By Editorial Staff.]

Affirmed as to plaintiff Travelers' Insurance Company, and reversed and remanded with directions as to plaintiffs Carl Sandeen and another.

Carl and Hanna Sandeen, as the surviving parents of Arthur Sandeen, deceased, and Gustaf Sandeen, deceased, sued to recover damages sustained by them by reason of their sons' deaths, caused by the alleged negligence of the defendant, Willow River Power Company. The Travelers' Insurance Company joined as a party plaintiff to recover payments for compensation, funeral expenses, and under section 102.49 (5), Stats. 1931, which it had made as the insurance carrier for August Johnson, in whose employment it was alleged the deceased were at the time of their injury. Upon a special verdict returned by the jury, and facts found by the court, judgment was entered against the defendant for the recovery of damages of $18,000 by the parents, and $3,200 by the Travelers' Insurance Company. Defendant appealed.W. T. Doar and Warren P. Knowles III, both of New Richmond, for appellant.

Wilcox & Wilcox, of Eau Claire (K. A. Campbell, of Minneapolis, Minn., of counsel), for respondents.

FRITZ, Justice.

Arthur and Gustaf Sandeen were electrocuted on September 8, 1931, on defendant's premises, while they were shoving a motor truck, on which there was a mounted derrick, belonging to defendant. Evidence, which in some respects was conflicting, admitted of finding that the truck had been left by defendant south of an oil tank in an open space between defendant's power house and another building used for office and storage purposes, which was about 60 feet to the southwest of the power house. The oil tank, which occupied about 27 x 11 feet of that space, was parallel and near to the power house. Across that open space defendant maintained two sets of six parallel, uninsulated wires, which extended from a bracket at the power house, with a span of 88 feet, to a bracket on a pole which was east of the west wall of the office building. Those wires were used by defendant for conducting a 2,300 volt current. The lower set of those wires was 13 1/2 feet above the ground at the power house and 18 feet above the ground at the pole. Below that lower set of wires, there were two insulated secondary wires, carrying 110 volts, and below them there was an insulated double strand telephone wire. The surface of the ground sloped downward to the west of the wires. Prior to September 8, 1931, defendant had requested August Johnson, a concrete work contractor, to construct a foundation for placing a new engine in defendant's power house. To commence doing that work, August Johnson, about an hour and a half before the accident, brought a crew of four of his employees to defendant's premises. The members of that crew were Knute Ogren, Ed Johnson, and Arthur and Gustaf Sandeen, respectively 20 and 18 years of age, who were college students working for August Johnson during their summer vacation. He directed his crew to first carry some heavy timbers from the power house across that open space on defendant's premises to a place west of the office building. That necessitated passing to the south of the mounted derrick. While at work, during the absence of August Johnson, the crew considered the derrick in their way as they had to turn, while carrying a long and heavy timber, around the southwest corner of the office building. They tried to push the truck toward the east, which was the only vehicular approach to the place where it was standing, but they could not move it because of the upward slope. Later, upon carrying a longer and heavier timber, they found that they could not take it around that southwest corner of the building, without moving that truck. They tried again and had succeeded in moving the truck eastward either 5 to 10 feet, according to the testimony of Ogren and Ed Johnson, or about 35 feet, according to testimony which was based on where others had seen the truck before and after the accident, when a wire cable on the boom of the derrick came into contact with the most westerly of the lower set of the high voltage wires. Instantly Arthur Sandeen, who had his hands on the iron frame at the rear of the truck, was electrocuted and dropped. To prevent the truck from backing westward because of the downward slope, Gustaf Sandeen grabbed the emergency brake, and he was also instantly electrocuted.

On the day of the accident and some time prior thereto, but after the derrick had been put in that place, the boom had been raised so that a wire cable on the boom extended upward to a position 15 1/2 feet above the ground. By the manual operation of appliances on the derrick, the boom could be raised to that height or lowered so as to be parallel to the ground, but none of the crew raised or lowered it on the day in question. At the point where the wire on the boom contacted with the high voltage wire, it was 14 1/2 feet above the ground. Below, at that point, the secondary wires and the telephone wires were, respectively, 12 1/2 feet and 10 feet above the ground. While carrying timbers, the crew had passed under those wires 24 to 40 times and they were in plain sight, but Ed Johnson and Ogren testified that they did not look up while pushing the truck because that required all of their energy, and that they had not observed the wires. Neither had any of the crew examined the derrick to ascertain whether the boom could be lowered. The testimony by an alleged expert witness, whom plaintiffs called, was that defendant's premises were not as safe as “would be reasonably permitted”; that the height of the wires constituted the unsafety; and that he did not think the defendant had done everything that was reasonably necessary to protect its employees and frequenters. On the other hand, an alleged expert witness called by defendant testified that the premises were as free from such dangers as the nature of the business would permit, and that they were reasonably adequate to render the place safe for employees and frequenters.

[1][2] The jury in a special verdict found that August Johnson, by and under the terms of his contract with the defendant, was acting and performing his services as an independent contractor; that to protect the life, health, safety, and welfare of employees and frequenters, it was necessary to give warning that the high tension wires in question were charged with a dangerous current of electricity and suspended at such height above the surface of the ground that the derrick boom could not pass under them without making contact therewith; that the deaths of Arthur and Gustaf Sandeen were the natural and probable result of the failure of the defendant to give such warning, and the defendant ought, as a person of ordinary intelligence and prudence, reasonably to have foreseen that injury might probably follow to some person from such failure to give such warning; that defendant failed to furnish and maintain a place of employment which was as free from danger as the nature of the place would reasonably permit, and the deaths of Arthur and Gustaf Sandeen were the natural and probable result of such failure of the defendant; and that neither Arthur nor Gustaf Sandeen, at the time in question, failed to exercise such care for their own safety as the great mass of boys of their age, capacity, knowledge, discretion, and experience, ordinarily exercises under the same or similar circumstances. Although there are many sharp conflicts in the evidence, we find, upon reviewing the evidence, that it does fairly admit of the jury's findings. Consequently, in view of the well-established rule that, if there is any credible evidence which, under any reasonable view, will support or admit of an inference either for or against the claim or contention of any party, it is for the jury to determine what are the proper inferences to be drawn therefrom, and the court should not substitute other answers for the jury's verdict (Trautmann v. Charles Schefft & Sons Co., 201 Wis. 113, 228 N. W. 741), we are not warranted in setting aside the foregoing findings of the jury.

[3] Defendant contends that under the evidence the court should have held, as a matter of law, that August Johnson was not an independent contractor, and that, as a consequence, Arthur and Gustaf Sandeen are to be deemed employees of the defendant, and that, therefore, there was no right to recover from defendant for their injury otherwise than under the Workmen's Compensation Act (St. § 102.01 et seq.). However, the jury's finding in that respect is well warranted, not only because there was evidence in the form of oral testimony that August Johnson retained full control as an independent contractor as to who constituted his crew, and where and how the crew was to work, but also because of express admissions in defendant's original answer, that the deceased Arthur and Gustaf Sandeen were employed by August Johnson, and that he “was an independent contract and had entire charge and supervision of the contract and of the employees working for him, including the said deceased.” Even in an amended answer, after omitting that former admission and also in some respects contradicting it, defendant nevertheless alleged “that said Gustaf Sandeen was working with the said Arthur Sandeen and in the employ of said August Johnson, who was an independent contractor.” Defendant also contends that the court erred in instructing the jury in relation to the issue as to whether August Johnson was acting as an independent contractor, by referring to him as “contractor Johnson” and also as “the contractor or...