Scieczinski v. Filer & Stowell Co.

• Decision Date: 15 December 1911
• Citation: 133 N.W. 641,147 Wis. 533
• Court: Wisconsin Supreme Court
• Parties: SCIECZINSKI v. FILER & STOWELL CO.

147 Wis. 533

133 N.W. 641

SCIECZINSKI

v.FILER & STOWELL CO.

Supreme Court of Wisconsin.

Dec. 5, 1911.

Dissenting Opinion, Dec. 15, 1911.

Appeal from Circuit Court, Milwaukee County; W. J. Turner, Judge.

Action by Leon Scieczinski against the Filer & Stowell Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Marshall, J., dissenting.

Doe & Ballhorn, for appellant.

Casimir Gonski (C. H. Hamilton, of counsel), for respondent.

TIMLIN, J.

A pile of brick in the cupola room of defendant's foundry fell upon plaintiff, injuring him severely, while he was in the employment of defendant and engaged in removing with a wheelbarrow slag and cinders from this room. The room was so small in proportion to the quantity of brick required to be piled therein that the brick pile extended from the square frame at the bottom of the cupola to the door of the room, a length of about 8 feet, and piled 3 brick or 24 inches wide would be about the limit of width which could be had, leaving room to open the said door and leaving space for plaintiff to work. With what brick there was already piled in this room, the quantity brought in on the occasionin question raised the pile of the stated width and length to about 12 feet in height. The floor of this room was a bed of dirt and cinders, concave in the center, with a slight slant, if any, from the walls toward this center. The defendant designated the place upon this floor where the brick should be piled and the quantity of brick to be piled. There was prior to the time in question some brick in this room and at this place forming a low pile of similar width. The brick kept in this room as well as the brick brought in upon the occasion in question was fire brick kept there and brought there for the purpose of lining the cupola. This was relined every six months, and there was during the six months intervals an occasional necessity for patching this brick lining. Relining was contemplated at some indefinite future time when the fire brick was brought in and piled on September 17, and 18, 1907. But no relining was then in progress. This cupola room, the cupola itself, and the men employed therein and thereabouts were under the charge and superintendence of the foreman, Barbier, whose duty it was to have the fire brick ready in the cupola room for use when needed. Barbier made a requisition for brick upon Kramer, the yard foreman, and the latter detailed two Greek workmen to bring the brick from the yard into the cupola room with wheelbarrows. The plaintiff did his wheelbarrow work removing the slag in the forenoon, and worked at other cupola work in the afternoon. The Greeks did their wheelbarrow work bringing in brick in the afternoon, and piled the brick or did yard work in the forenoon, and did no cupola work. This was because the room and its entrance were so narrow that two wheelbarrow crews could not work at the same time. The Greeks and the plaintiff, who was a Pole, spoke no common language, and could communicate only by signs. In the forenoon of September 18th, while the Greeks were engaged in piling up the brick they had brought in and the plaintiff with one Pitulski was engaged in wheeling out slag, the brick pile in the cupola room which had reached a height of from 10 to 12 feet, and of the length and width before stated, suddenly toppled over on plaintiff. The jury found that the pile of brick was not reasonably safe, and that the place was not reasonably safe; that the defendant ought in the exercise of ordinary care to have known of this, and was guilty of a want of ordinary care, which was the proximate cause of plaintiff's injuries. The court added two findings resting upon undisputed evidence, viz., that the location of the brick pile was designated by defendant, and that the unsafe condition of the brick pile was caused by the height to which the brick were piled. The jury found for the plaintiff upon the questions of assumption of risk and contributory negligence. It is argued that a nonsuit should have been granted or a verdict for defendant directed as requested at the trial.

[1] We cannot upon the evidence relating to defendant's liability which is practically without dispute so hold. The quantity of brick to be placed in this small room on the floor or foundation there existing and the place where it was piled and the manner of piling it were under the command and supervision of the foreman, Barbier. The pile fell from some cause. There is no evidence that the laying or placing of the brick in the pile by the Greeks was negligently or imperfectly done. In short, the finding of the court that the brick fell because it was piled too high rather negatives this, if a negative was needed for such a fact which does not appear by evidence. The defendant provided these small and cramped quarters, fixed the quantity of brick to be piled therein, and designated the place where it should be piled. That quantity would not fit in that place unless it was piled to this dangerous height. The defendant's foreman in charge of the placing of this brick passed through the cupola room and close by this pile of brick shortly before the injury, but claims his mind was engrossed with other matters, and he did not notice the pile, and these duties all related to and were part and parcel of the master's duty to use reasonable care to maintain a safe place. In this view the question whether or not the Greeks were fellow servants of the plaintiff becomes immaterial. That the Greeks and the plaintiff were members of different gangs each under a different foreman usually, and not engaged in exactly the same work, is only significant as bearing upon the contributory negligence of the plaintiff as showing that he himself took no active part in making the place unsafe. The recovery here may be based on the failure of the master to exercise reasonable care to keep the place reasonably safe. In Hulehan v. Railway Co., 68 Wis. 520, 32 N. W. 529, judgment for plaintiff was affirmed upon a special verdict finding: (1) The injuries complained of were caused by the negligence of the defendant. (2) This negligence consisted in allowing sticks or blocks of wood to remain along the track. (3) These sticks or blocks of wood had remained for several days prior to the injury. (5) The sticks or blocks of wood along the track were allowed to fall there by employès on the train in loading the tender. (6) It was the duty of defendant's section foreman to remove the blocks and sticks. For other cases where the neglect of a fellow servant co-operating with the failure of the master to furnish or maintain a safe place produced the injury, see Driscoll v. Allis-Chalmers Co., 144 Wis. 451, 129 N. W. 401;Mulcairns v. Janesville, 67 Wis. 24, 29 N. W. 565;Halwas v. American Granite Co., 141 Wis. 127, 123 N. W. 789;Rankel v. Buckstaff-Edwards Co., 138 Wis. 442, 120 N. W. 269, 20 L. R. A. (N. S.) 1180;Eingartner v. Illinois Steel Co., 94 Wis. 70, 68 N. W. 664, 34 L. R. A. 503, 59 Am. St. Rep. 859;Beach v. Bird & Wells L. Co., 135 Wis. 550, 116 N. W. 245;Sparling v. U. S. Sugar Co., 136 Wis. 509, 117 N. W. 1055.

[2] Because repairs were contemplated consisting of relining the cupola, the duty of the master to keep the place safe did not cease where the injured servant was not himself at the time participating in the making of such repairs. “That, at most, would be one of the circumstances bearing on the question of what would constitute reasonable safety and on the measure of notice to an employè of the existence of some defects or perils.” Gorsegner v. Burnham, 142 Wis. 486, 125 N. W. 914. The answers of the jury to the effect that the pile of brick was not reasonably safe, and that the place where the plaintiff was injured was not reasonably safe, therefore have support in the evidence, and cannot be disturbed. That portion of the verdict acquitting the plaintiff of assumption of risk and contributory negligence also rests upon evidence and lack of evidence to the contrary, and must be allowed to stand.

[3] We must bear in mind that here the burden of proof is upon defendant. From the evidence submitted it does not follow as matter of law that the plaintiff knew or ought to have known what quantity of brick was required to be piled here or when the quota to be piled would be filled and further piling cease. He probably did not know until the last wheelbarrowful was brought how many brick were coming in, nor until the last course was laid how high the pile would grow, nor the resistance of the floor.

[4] All of these were matters upon which the master, if he perform his duty, might in the exercise of ordinary care be required to consider, while they might not be so apparent to the plaintiff, who was only charged with reasonable care for his own safety and to notice obvious dangers.

[5] Whether this pile of brick on this floor would fall at 10, 11 or 12 feet height was not so obvious to an untrained mind engrossed in other work as to require us to set aside or disregard the verdict of the jury acquitting the plaintiff of assumption of risk. It is impossible to say definitely at what time this pile became dangerous, nor how long the plaintiff worked in proximity to it thereafter. We cannot disturb the verdict on this ground. We perceive no material or prejudicial error in the form of the questions submitted to the jury.

[6] The finding that the place was not reasonably safe cannot lose its legal potency or effect because of the additional finding that the pile of brick was not reasonably safe, nor did the latter finding or the submission thereof in our view confuse the trial or issues or prejudicially affect the defendant. There are some verbal lapses in the instructions, but none of serious consequence, and none sufficiently prejudicial to call for reversal. It would do no good to discuss them here because they do not indicate any legal heresy but merely a careless use of language.

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