Schumacher v. Carl G. Neumann Dredging & Improvement Co.

• Decision Date: 08 December 1931
• Citation: 206 Wis. 220,239 N.W. 459
• Court: Wisconsin Supreme Court
• Parties: SCHUMACHER v. CARL G. NEUMANN DREDGING & IMPROVEMENT CO.

206 Wis. 220

239 N.W. 459

SCHUMACHER

v.CARL G. NEUMANN DREDGING & IMPROVEMENT CO.

Supreme Court of Wisconsin.

Dec. 8, 1931.

Appeal from a judgment of the Circuit Court for Shawano County; A. H. Reid, Judge.

Action by William Schumacher against the Carl G. Neumann Dredging & Improvement Company. Judgment for plaintiff, and defendant appeals.--[By Editorial Staff.]

Affirmed.

Action grounded on alleged negligence commenced August 12, 1930; judgment for plaintiff entered May 4, 1931. Defendant appeals.

Plaintiff's wife was drowned or died from heart failure when in bathing in front of plaintiff's premises on stepping into a hole ten feet deep which plaintiff claims was made by defendant's dredge and negligently left unguarded. The defendant denies that it dredged the hole and claims that it was dredged by a dredge operated by another company. The hole was not marked or guarded in any way.

The findings of the jury were that the deceased stepped into the hole; the defendant dug it; without guards it was imminently dangerous to life; the defendant ought reasonably to have foreseen that if left unguarded it might probably cause injury to bathers; its presence caused the death; neither the deceased nor the plaintiff was guilty of contributory negligence. Judgment went for plaintiff upon the verdict.Bird, Smith, Okoneski & Puchner, of Wausau, for appellant.

Winter & Winter, of Shawano, for respondent.

FOWLER, J.

The appellant claims that: (1) There is no evidence to support the findings of the jury that: (a) The deceased was not guilty of contributory negligence; (b) the deceased stepped into a hole; (c) stepping into a hole caused the death of the deceased; (d) the defendant dug the hole into which it is claimed the deceased stepped. (2) The defendant was not under duty to guard the hole at the time of the death: (a) Because of lapse of time and (b) because it was an independent contractor and had turned over its work to its principals who had accepted it. (3) The court erred: (a) In rejecting the expert evidence as to who dug the hole into which it is claimed the deceased stepped; (b) in refusing to permit a physician who attended the deceased prior to her death to testify as to what caused the condition for which he treated her.

1 (a), (b), and (c) As to defendant's claim in these respects, we will only say that we have carefully considered the evidence upon which the jury's findings were based and consider that their findings are sufficiently supported. No good purpose would be served by detailing this evidence.

[1] 1 (d) Upon this point the evidence is not as clear and certain as we would wish, but we conclude that the finding must be upheld. It is quite clear that the hole into which the jury found the deceased stepped was dug by the defendant's dredge or by another dredge that had worked in the vicinity. Both dredges were pumping sand from the lake bed upon the shore for improvement of summer residence properties. While there is evidence pro and con as to whether the defendant's dredge pumped sand on to the adjacent shore out of the hole involved, it is admitted that while it was being moved it grounded near the location of this hole and at least pumped itself free. And while it would seem from the testimony of witnesses as to the construction and method of work of defendant's dredge that it could not have dug a hole of such dimensions and contour as that involved, it also appears quite as probable from the testimony as to the construction and method of work of the other dredge that that dredge could not have dug such a hole, and as first stated it is manifest that the hole was dug by one dredge or the other. While the other dredge was admittedly by mistake operating a few minutes at about the location of this hole, and pumped a small amount of sand upon the adjacent shore, the shortness of the time it was so engaged and the small amount of sand thrown upon the shore by it seem to us to warrant the conclusion of the jury that it did not dig a hole so large and deep as the one involved. We cannot say that the jury were not warranted in concluding that there was stronger reason for believing that the defendant's dredge dug the hole than that the other dredge dug it, and in concluding from the whole evidence that the fact is as they determined it.

2 (a) The hole was located about 400 feet from a public bathing beach, about 275 feet off shore, in shallow water in a sandy beach stretching in front of numerous summer cottages and commonly much used for bathing by occupants of the cottages and their guests. There is no claim that the findings of the jury that the hole was imminently dangerous and that injury from leaving the hole unguarded ought reasonably to have been anticipated are not supported. If a bather not knowing of its presence had been drowned from getting into the hole shortly after it was dug, there would be no doubt of the responsibility of the one who dug it and left it unguarded. But the plaintiff's wife got into the hole about six months after it was dug, after a winter had intervened during which, had barriers been placed when defendant left it, their destruction by pressure of ice would have been more or less probable. No questions were put or requested to...