Schmidt v. J. G. Johnson Co.

• Decision Date: 31 January 1911
• Parties: SCHMIDT v. J. G. JOHNSON CO.
• Court: Wisconsin Supreme Court

145 Wis. 49

129 N.W. 657

SCHMIDT

v.J. G. JOHNSON CO.

Supreme Court of Wisconsin.

Jan. 31, 1911.

Appeal from Circuit Court, Manitowoc County; Michael Kirwan, Judge.

Action by Mary Schmidt, as executrix of John Schmidt, deceased, against the J. G. Johnson Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This action was brought by plaintiff, as executrix, to recover for personal injuries sustainedby her late husband which resulted in his death. The principal issues involved on the trial were whether defendant furnished a reasonably safe working place, assumption of risk, contributory negligence, and amount of damages. The defendant objected to any evidence under the complaint, which objection was overruled. Motions were made by defendant for nonsuit and directed verdict, which were denied. The jury returned the following verdict:

“(1) Was the death of plaintiff's testator, John Schmidt, deceased, caused by his being pressed on June 11, 1908, between the west wall of the coal bin or shed and the post to the west thereof described in the complaint, when that wall moved or gave way to some extent, while he, as an employé of said defendant company, was doing the work which he was directed by the foreman to do? Answer: Yes.

(2) At the time when said testator was injured, was the west wall of said shed or bin so weak and insufficient, for the purpose of holding the coal then stored therein, as to make the place in which plaintiff's testator was at work when he was injured not reasonably safe for performing there the work he was then doing? Answer: Yes.

(3) If you answer the second question ‘Yes,’ answer this: Before said testator was injured, did the proper representative of defendant know that said place in which plaintiff's testator was at work when he was injured was not reasonably safe for the performance there of the work which he was then doing? Answer: Yes.

(4) If you answer the second question ‘Yes' and the third question ‘No,’ answer this: Would the exercise of ordinary care by defendant's said representative have made him aware of the fact, before said testator was injured and in time to have prevented the injury, that said place specified in the third question was not reasonably safe for the performance there of the aforesaid work? Answer: Yes.

(5) If you answer the second question ‘Yes,’ and if you also answer ‘Yes' to either the third or fourth question, answer this: Was the testator's injury the natural and probable consequence of the defendant's negligence in not having provided a reasonably safe place for the testator in which to do the aforesaid work? Answer: Yes.

(6) If you answer the fifth question ‘Yes,’ answer this: In the exercise of ordinary care, should defendant's said representative, as a man of ordinary intelligence and in the light of the attendant circumstances, reasonably have foreseen before said testator was injured, and in time to have prevented the injury, that the existing condition of the west wall of said shed or bin would be likely to cause personal injury to any of defendant's employés while engaged in doing the work which said testator was doing at the time of his injury? Answer: Yes.

(7) If you answer the second question ‘Yes,’ answer this: Before he was injured, did said testator know that the place specified in the third question was not reasonably safe for the performance there of the aforesaid work? Answer: No.

(8) If you answer the seventh question ‘No,’ answer this: Would the exercise of ordinary care by said testator have made him aware of the fact before he was injured and in time to have prevented the injury that said place specified in the third question was not reasonably safe for the performance there of the aforesaid work? Answer: No.

(8 1/2) Before his injury and while he was standing on the ladder, was said testator advised by Fred Krase to get off from the ladder because the west wall of the coal shed or bin was cracking? Answer: No.

(8 3/4) If you answer ‘Yes' to the question last above, answer this: In reply to the advice given by Fred Krase did the said testator say: ‘It won't come so soon’? Answer: No.

(9) Did any want of ordinary care on the part of said testator contribute to cause his injury? Answer: No.

(10) What sum will reasonably compensate the estate of said testator for the pain and suffering which he experienced from his aforesaid injuries before his death, and for the expense of medical aid and attendance in the treatment of those injuries? Answer: $1,025.

(11) What sum will fairly and justly compensate Mary Schmidt, the widow of said testator, for the pecuniary injury resulting to her from his death? Answer: $2,000.”

The usual motions were made by defendant after verdict and denied, and judgment rendered in favor of the plaintiff, from which this appeal was taken.

Nash & Nash, for appellant.

O'Connor, Schmitz & Wild and Schmitz & Groelle, for respondent.

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

The questions raised by the various assignments of error may be classified under three heads: (1) Was there a failure to furnish a reasonably safe working place? (2) Did plaintiff assume the risk and was he warned of the danger? (3) Was plaintiff otherwise guilty of contributory negligence? A preliminary question is raised by appellant on an objection to evidence under the complaint on the ground that it failed to state a cause of action. The court below overruled the objection, and we think no prejudicial error was committed in that regard.

1. Error is assigned because of refusal to grant a nonsuit. It is argued that plaintiff produced no proof to show any negligence in constructing or maintaining the wall which gave way and caused the injury, or any proof of actual defect in the wall. The evidence at the close of plaintiff's case showed that deceased was 62 years old when injured, was a brickmaker by trade, but had only worked at it 4 or 5 months in the year; did not show the extent of his experience working around coal sheds or other similar structures. On the morning in question, defendant's foreman ordered deceased and one Krieger to put braces on the west side of a hard coal shed. This shed stood between the river and Quay street; the river being north of it and the street south. The west wall of the shed was about 105 feet long and the south wall 114 feet long. The west wall of the shed was built by defendant in the spring of 1908, and had been finished about a month at the time of the injury, June 11, 1908. The top of the wall, which was 19 or 20 feet high, slanted in, and was about 2 feet farther east at the top than at the bottom. The wall consisted of bin posts set in the ground and three-inch planks spiked on the inner surface thereof. The bin was about half filled with coal when deceased and Krieger at the time of the injury were at work on it putting up braces. The day before they had worked putting up braces on the south wall. On the day in question, the deceased and Krieger by instruction of defendant's foreman began bracing at the middle of the west wall. They set a brace against the bin post, another post standing straight the foot of which was in line with the bin post, but about 12 inches north. The top of the bin post, owing to the slant, was about two feet east of the straight post. There was a knot on the west surface of the bin post which interfered with the brace, and deceased put up a ladder, one rail of it resting against the bin post and the other against the straight post and went upon it, his right foot resting on the round next to the top and his left foot between the ladder and the planking of the wall, facing south, and chopped off the knot. Deceased then took hold of the brace to adjust it, his body being between the straight post and the planking east of it, a space of about a foot; then came a crash. Krieger, who was at the bottom of the brace, jumped back, then looked at deceased, who was at the top of the ladder, holding on the top of the brace and crying out. The top of the wall had come out, both posts had shifted, but the ladder still stood. The top of the wall had moved about four feet and the straight post moved west some; the space between the wall and the straight post being narrowed from a foot to about seven inches. The deceased was removed to the hospital and later died. One of plaintiff's witnesses testified that he did not see anything wrong with the wall before the crash, that it looked good to him, that the ladder was 9 feet high, and the knot 12 feet from the ground. A motion for a nonsuit was made based upon the contentions that plaintiff failed to prove negligence in constructing or maintaining the wall, or knowledge of defect, if any existed, that plaintiff's proof showed that deceased was engaged in making safe an unsafe place, and that he was guilty of contributory negligence. We do not think any of these contentions tenable. Therefore the nonsuit was properly denied. In making his case plaintiff was not called upon to prove defects in the wall. The fact that it was constructed by defendant only a short time before the injury and gave way in the manner shown by the evidence was sufficient to warrant the jury in finding that it was not properly constructed to the knowledge of defendant in the absence of any showing as to cause of the movement. Montanye v. Northern E. M. Co., 127 Wis. 22, 105 N. W. 1043;Lipsky v. Reiss C. Co., 136 Wis. 307, 117 N. W. 803;Mulcairns v. Janesville, 67 Wis. 24, 29 N. W. 565;Parker v. Fairbanks M. Mfg. Co., 130 Wis. 525, 110 N. W. 409;Mueller v. Northwestern I. Co., 125 Wis. 326, 104 N. W. 67. The foregoing cases and many others in this court clearly show that negligence was inferable from the facts proved. In Mulcairns v. Janesville, supra, a wall fell and the unexplainable falling was admitted in the answer, and it was held that the falling was prima facie evidence of negligence. The court said: “If it had been properly...