Spille v. Wis. Bridge & Iron Co.

• Decision Date: 09 January 1900
• Citation: 81 N.W. 397,105 Wis. 340
• Court: Wisconsin Supreme Court
• Parties: SPILLE v. WISCONSIN BRIDGE & IRON CO.

105 Wis. 340

81 N.W. 397

SPILLE

v.WISCONSIN BRIDGE & IRON CO.

Supreme Court of Wisconsin.

Jan. 9, 1900.

Appeal from circuit court, Milwaukee county; D. H. Johnson, Judge.

Action by J. Dietrich Spille, as administrator, against the Wisconsin Bridge & Iron Company. Judgment for plaintiff. Defendant appeals. Reversed.Winkler, Flanders, Smith, Bottum & Vilas, for appellant.

C. H. Van Alstine and Fiebing & Killilea, for respondent.

CASSODAY, C. J.

This action was commenced December 21, 1896, to recover damages sustained by the alleged negligent killing of the plaintiff's intestate June 18, 1896, while in the employ of the defendant as a laborer unloading iron from flat cars at the defendant's works at North Milwaukee by using and operating an air hoist which was at the time fastened to some iron bars, weighing 3,795 pounds, for the purpose of lifting such bars from off the car; and upon the bars being lifted by the air hoist, and while the force was being applied, the eyebolt which fastened the air hoist to a crane above broke, and the air hoist fell upon and instantly killed the plaintiff's intestate. Issue being joined, and trial had, the jury at the close thereof returned a special verdict to the effect (1) that the plaintiff's intestate, Martin Kuettman, was killed while in the employment of the defendant by the falling of an air hoist, so-called, at the time and place alleged in the complaint; (2) that the plaintiff's intestate left his widow him surviving; (3) that the air hoist fell by reason of the breaking of the eyebolt by which the same was attached to or connected with the gauntree, so called; (4) that the defendant, in the selection of the material for the eyebolt, did not use ordinary care and prudence; (5) that the employés of the defendant who made the eyebolt did not use ordinary care and prudence in the manufacture of the same; (6) that a person of ordinary intelligence, in the light of attending circumstances, ought to have known or apprehended that the eyebolt was liable to break and let the air hoist fall and injure one or more of the employés at work therewith; (7) that the defendant was guilty of a want of ordinary care in the selection of the material or in the construction of the eyebolt, or either or both, which was the proximate cause of the death of the plaintiff's intestate; (8) that such want of ordinary care was such that a man of ordinary intelligence would have anticipated or apprehended consequent injury to the employés working about the air hoist; (9) that such want of safety in the material from which the eyebolt was constructed was the cause of the breaking of the eyebolt; (10) that such failure of the employés of the defendant who constructed the eyebolt to use ordinary care in the construction thereof was the cause of the breaking of the eyebolt; (11) that the plaintiff's intestate was not guilty of any want of ordinary care which was the proximate cause of his death, or which proximately contributed thereto; (11 1/2) that a man of ordinary intelligence and prudence ought not to have discovered the danger to be apprehended from the appliance not being reasonably safe; (12) that they assess the plaintiff's damages by reason of the pecuniary loss of the intestate's widow at $2,900. From the judgment entered upon such verdict in favor of the plaintiff for the amount stated, with costs, the defendant brings this appeal.

It appears from the description of the gauntree in evidence, in effect, that there was a heavy frame structure, about 80 feet in width from track to track, on which it traveled; that the top frame extended east and west about 80 feet; that the extreme height of the top column was about 28 feet from the ground; that the upper frame was about 4 1/2 feet wide and 5 or 5 1/2 feet deep, leaving the distance from the bottom of the frame to the ground about 22 feet; that the top frame was supported by two legs on each end (the two bars or legs being, as stated, about 80 feet apart); that such pairs of legs were braced together and run on wheels, which in turn rested on a T rail, and the gauntree was moved along the track by means of pinch bars; that the track was about 160 feet long, and between the rails and about 10 feet from the west end was a railway track on which cars were placed in loading and unloading structural iron and steel by means of the gauntree and the hoist attached to it; that upon the top of the frame structure was a track extending from east to west, as stated, on which the carriage which supported the hoist was run; that when the load was lifted by the hoist it could be moved from east to west and west to east by moving the carriage which supported the hoist along the top frame of the gauntree, or it could be moved from north to south and in the contrary direction by moving the entire gauntree along the track by means of pinch bars inserted between the wheels and the track; that the air hoist consisted of a cylinder with piston head, the cylinder being hung in a perpendicular position; that from the piston head was suspended a long and heavy hook, to which the load would be attached by chains; that the piston head was operated by means of compressed air; that the air, being admitted beneath the piston head, would force the latter up and lift the load; that it was lowered by letting out the air; that the hoist was suspended from the center of a carriage which traveled from east to west, as stated; that the carriage had a gear of about 20 inches; that it was about 20 inches long, and the wheels about 16 inches in diameter; that the hoist was suspended from such carriage by means of an eyebolt; that the eyebolt was about 10 inches long; that in the upper end was a hole through which was passed an iron “bent,” or round bar, securely fastened to the carriage, thus allowing the eyebolt to hang from the carriage; that the lower end of the eyebolt was threaded, and was screwed into the top and center of the air hoist; that it was possible to oscillate that eyebolt north and south to some extent (say, on the beam of the hoist, when the piston was hanging down, a distance of 2 feet either way from the center,--4 feet total); that there would be an oscillation of 2 feet either way from the center at the bottom of the airhoist (16 to 18 feet); that the bolt had an oscillation from east to west practically unlimited (it could not swing to an angle of 45°, but could swing 4 feet either side of the center of the beam end, not more than 4 feet, because there was a hole or slot in the carriage, up through which the eyebolt ran, that would not permit it to swing further); that the cause of the accident was the breaking of such eyebolt while a load was being lifted, which caused the hoist to fall upon the deceased, who was under it at the time, and instantly killed. At the time of the accident the deceased and two other...