Schultz v. Chi., M. & St. P. Ry. Co.
| Decision Date | 28 November 1902 |
| Citation | 92 N.W. 377,116 Wis. 31 |
| Court | Wisconsin Supreme Court |
| Parties | SCHULTZ v. CHICAGO, M. & ST. P. RY. CO. |
OPINION TEXT STARTS HERE
Appeal from superior court, Milwaukee county; J. C. Ludwig, Judge.
Action by John Schultz against the Chicago, Milwaukee & St. Paul Railway Company. From a judgment for defendant, plaintiff appeals. Affirmed.
Action to recover for personal injuries by reason of the fall of certain lumber from a car which plaintiff, a common laborer, was assisting to unload, on May 13, 1899. The car was an ordinary flat car, having upon its floor a number of nails or spikes, described as “sidewalk spikes,” driven in so that the heads were still from an inch to an inch and a half above the floor of the car, some of them being lower by reason of being bent over. There was no evidence of the ownership of the car, or by whom loaded. On this car was a quantity of lumber, of which a tier or course of planks between two and three feet high was laid evenly and level along each side of the car, and restrained by upright stakes fitting into sockets along the outer edges. The middle of the car between these two courses or tiers was filed with indiscriminate lumber thrown in helter-skelter. This condition was obvious from either end of the car. The car was stationed upon a curve, with the ends approximately north and south, and the east side lower than the west. The gang of six men of which plaintiff was one proceeded to unload the car, and, after removing a small quantity of lumber, one of them, in plaintiff's sight, knocked out of place the upright stakes which served to retain the lumber. Plaintiff approached the east side of the car to put in place some skids on which to slide the lumber off, and as he did so the pile of planks on that side tipped over and fell onto him. That pile is described as consisting, first, of a 3x4 set edgeways, and then 11 2-inch planks. These planks, as they were piled and lay on the car, were level. None of the witnesses did--or, indeed, could--testify to any immediate cause for the planks falling over; simply, having been in place at one moment, at another they fell, some five or six minutes after the stakes had been taken out, and after several pieces of lumber had been unloaded over that side. The negligence alleged in the complaint was, first, the presence of the spikes in the floor of the car, and that through negligence of the defendant the lumber was stacked, piled, and loaded so unskillfully and unsafely that by reason thereof and of the said defect in said car the lumber rolled down upon the plaintiff. At the close of plaintiff's evidence the court granted a motion for nonsuit on the ground that the cause of the fall of the lumber was mere matter of conjecture, and that there was no evidence to establish that it was caused by the alleged negligence of the defendant. From judgment thereon plaintiff appeals.Max W. Nohl (Ernest Bruncken, of counsel), for appellant.
C. H. Van Alstine, for respondent.
DODGE, J. (after stating the facts).
Plaintiff contends that the fall of the lumber must be ascribed to the presence of the spikes in the bottom of the car; also to the manner in which the lumber was laden upon the car, namely,...
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