Sweain v. Donahue

• Decision Date: 15 December 1899
• Citation: 81 N.W. 119,105 Wis. 142
• Parties: SWEAIN v. DONAHUE ET AL.
• Court: Wisconsin Supreme Court

105 Wis. 142

81 N.W. 119

SWEAIN

v.DONAHUE ET AL.

Supreme Court of Wisconsin.

Dec. 15, 1899.

Appeal from circuit court, Marathon county; Charles M. Webb, Judge.

Action by Edward Sweain against Dennis Donahue and Albert Johnson. From a judgment in favor of plaintiff, defendants appeal. Affirmed.

Plaintiff secured a judgment for $2,500 and costs for injuries claimed to have been sustained by him by reason of the negligence of the defendant Donahue. The defendants are co-partners engaged in logging. Plaintiff entered their employment as a laborer. On March 12, 1896, plaintiff, the defendant Donahue, and one Munster, the teamster, were engaged in taking out, and sawing into logs, some skids that had been in use during the winter. These skids were 40 or 50 feet long, about 1 foot in diameter at the large end, and 6 inches at the other. They lay at right angles with the road, the large end being nearest the road, and were grouped in pairs. They were 7 or 8 feet apart next to the road, and about 4 feet at the other end. They lay flat on the ground, and were partially embedded in snow and ice. The work being done was to get the skids loose and saw them into logs. Seven or eight pieces had been taken up before the accident. The teamster would hitch his team to the large end, and give it a pull. If it did not come loose, they would chop the snow and ice away from the sides until it could be loosened. At the time of the accident the teamster had tried the skid with the team, but it held fast. Both plaintiff and the teamster commenced chopping to loosen it. Plaintiff was working betweenthe two skids, with his back to the team. Donahue came up, and directed the teamster to start the team, without warning plaintiff. The log snapped loose from the ice, and was jerked around, catching plaintiff's leg, and crushing it so badly that it had to be amputated. The defendants take this appeal, and claim that no negligence is shown; that the verdict is against the weight of the evidence; and that the court misdirected the jury.

Ryan, Hurley & Jones, for appellants.

Van Hecke & Smart, for respondent.

BARDEEN, J. (after stating the facts).

A careful review of the whole case left me with the impression that the evidence of defendants' negligence was hardly sufficient to support the verdict, but the other members of the court are of opinion there was sufficient to go to the jury, and that their finding thereon ought not to be disturbed. This conclusion is based upon the fact that it was negligence for the defendant to direct the team to be started, without warning, while the plaintiff was standing so near the skid, his back to the team, that, if the log should loosen suddenly, it would very likely do just what was done in this case,--swing around and cause injury. The defendant must certainly have known of plaintiff's position with reference to the log. He must also have known that, if force was suddenly applied to the log, partially embedded in ice, it would be likely to snap loose, as the logs had done they had worked on before. No doubt plaintiff possessed the same knowledge, but he was standing at work, with his back to the team, at a point where the log, if suddenly loosened, would swing towards him. Being...