Taylor v. N. Coal & Dock Co.

• Decision Date: 14 May 1915
• Citation: 161 Wis. 223,152 N.W. 465
• Parties: TAYLOR v. NORTHERN COAL & DOCK CO.
• Court: Wisconsin Supreme Court

161 Wis. 223

152 N.W. 465

TAYLOR

v.NORTHERN COAL & DOCK CO.

Supreme Court of Wisconsin.

May 14, 1915.

Appeal from Circuit Court, Douglas County; Martin L. Lueck, Judge.

Action by Margaret Taylor, as administratrix of George Taylor, against the Northern Coal & Dock Company. Judgment for plaintiff, and defendant appeals. Affirmed.

This is an appeal from a judgment of the circuit court for Douglas county entered November 16, 1914, for the sum of $4,510.54, damages and costs, in an action brought for the death of one George Taylor.

The complaint contained four causes of action: The first for injuries to and pain and suffering of deceased caused by the wanton and willful negligence of the defendant; second, for the death of deceased caused by the wanton and willful negligence of the defendant; third, for injuries and suffering caused by the negligence of the defendant; and, fourth, for death caused by the negligence of the defendant.

The court below held that there was no wanton or willful negligence shown, and submitted the case to the jury on the causes of action for ordinary negligence. The jury returned the following verdict:

“(1) Was George Taylor warned not to be on the dock between the hoisting rigs and the boat? Answer: No.

(2) Was said George Taylor sufficiently warned prior to the injury that he was not to work between the hoisting rig and the edge of the dock while the hoisting apparatus was in operation? Answer: No.

(3) Did the defendant negligently fail to warn said George Taylor of the starting of said hoisting apparatus after the repairs to the steering line had been completed? Answer: Yes.

(4) If you answer the third question, ‘Yes,’ then answer this question: Was such negligence the proximate cause of the injury and death of said George Taylor? Answer: Yes.

(5) Did any want of ordinary care on the part of George Taylor contribute proximately to produce his injury? Answer: No.

(6) What sum of money will compensate the widow for the pecuniary loss sustained by her in consequence of the death of said George Taylor? Answer: $4,000.

(7) What sum of money will make compensation for the damages sustained by George Taylor in his lifetime in consequence of the injury received by him? Answer: $350.”

Judgment was entered in favor of the plaintiff thereon, and defendant appealed.

Luse, Powell & Luse, of Superior (A. E. Boyesen, of St. Paul, Minn., of counsel), for appellant.

Grace, Hudnall & Fridley, of Superior, for respondent.

KERWIN, J. (after stating the facts as above).

At the time of the injury complained of the defendant was the owner of a coal dock on the bay in the city of Superior, and engaged in unloading coal from boats onto said dock. In carrying on the business boats loaded with coal are tied up at the end of said dock. The floor of the dock is a few feet above the water of the bay. A trestle rests on the dock 6 or 8 feet from the end of the dock, and extends above the floor of the dock about 60 feet. There are appliances used for hoisting buckets of coal from boats tied up beside the dock, and a chute or hopper into which is dumped the coal raised from the boats in said buckets. On top of the trestle is a shanty which is occupied by the person who operates the machinery. The buckets, in passing from the boat to the chute, pass over and 60 or 70 feet above the portion of the floor or dock which is at the bottom of the superstructure, and between it and the outer or channel edge of the dock. In the usual operation of unloading coal from the boats onto the dock lumps of coal fall from the buckets onto the dock and near the outer edge of the dock.

On the 4th and 5th of December, 1912, the steamer Charles Hebbard was moored at the edge of the dock of defendant for the purpose of having its cargo of coal unloaded on defendant's dock, and the defendant was on said days engaged in unloading the cargo. On and prior to December 5, 1912, one George Taylor was in the employ of the Superior Shipbuilding Company as mechanic and ship carpenter. Said shipbuilding company was at said time engaged in repairing boats when moored at the docks. Said shipbuilding company received an order to repair the Charles Hebbard, and, in pursuance of such order directed Taylor and others of its employés to make the repairs. On the 5th of December, 1912, said Taylor was engaged in making the repairs when a lump of coal fell from a bucket while being hoisted by defendant and struck him upon the head, from the effects of which he died.

Counsel for defendant insists that the plaintiff failed to make a case, and that a verdict should have been directed for defendant on the ground that there was no proof of negligence on the part of defendant, and that the evidence showed that the deceased was guilty of contributory negligence.

[1] 1. It is contended by counsel for appellant that deceased was a trespasser, or, at most, a bare licensee to whom the defendant owed no duty of active care. It is clear from the evidence that deceased was not a trespasser. He was lawfully at work repairing the boat at the time of the injury. He was authorized to be there, and the defendant knew that he was at work repairing the boat, and made no objection, so deceased at the time of injury was entitled, at least, to all the privileges and protection of a licensee.

This court has often spoken upon the subject. Davis v. Chicago & N. W. Ry. Co., 58 Wis. 646, 17 N. W. 406, 46 Am. St. Rep. 667;Dowd v. Chicago, M. & St. P. Ry. Co., 84 Wis. 105, 54 N. W. 24, 20 L. R. A. 527, 36 Am. St. Rep. 917;Hupfer v. National D. Co., 114 Wis. 279, 90 N. W. 191;Muench v. Heinemann, 119 Wis. 441, 96 N. W. 800;Rowley v. Chicago, M. & St. P. Ry. Co., 135 Wis. 208, 115 N. W. 865;Hasbrouck v. Armour & Co., 139 Wis. 357, 121 N. W. 157, 23 L. R. A. (N. S.) 876;Brinilson v. Chicago & N. W. Ry. Co., 144 Wis. 614, 129 N. W. 664, 32 L. R. A. (N. S.) 359;Haley v. Swift & Co., 152 Wis. 570, 140 N. W. 292;Lewandowski v. McClintic-Marshall Const. Co., 155 Wis. 322, 143 N. W. 1063.

[2] The defendant was lawfully engaged in unloading the cargo. The deceased was lawfully on the boat repairing it. Under the decisions of this court the defendant was bound to refrain from acts of affirmative negligence. It was bound to so act as not to unnecessarily increase the danger to deceased, or render the premises more dangerous, at least without notifying deceased of such increased danger. The rule is that one cannot be actively negligent toward a mere licensee. Hupfer v. National D. Co., 114 Wis. at page 290, 90 N. W. 191. The licensor owes to the licensee the duty to refrain from acts of active negligence rendering the premises dangerous. Brinilson v. Chicago & N. W. Ry. Co., 144 Wis. 614, 129 N. W. 664, 32 L. R. A. (N. S.) 359.

The evidence shows that deceased had repairs to make on both sides of the boat. He had worked some on the port side, and had started to do work on the starboard side under the unloading rig while the defendant was making some repairs on the unloading rig, which took over an hour to make, during which time the unloading rig was not running, and it was safe for deceased and his crew to do the work.

[3] There is credible evidence that the defendant knew that deceased and his crew were at work on the starboard side of the boat and under the unloading rig where the coal dropped when the unloading rig was in operation, and that deceased was not notified when the...