Tewes v. Indus. Comm'n

• Decision Date: 08 November 1927
• Citation: 194 Wis. 489,215 N.W. 898
• Parties: TEWES ET AL. v. INDUSTRIAL COMMISSION ET AL. (TWO CASES).
• Court: Wisconsin Supreme Court

194 Wis. 489

215 N.W. 898

TEWES ET AL.

v.INDUSTRIAL COMMISSION ET AL. (TWO CASES).

Supreme Court of Wisconsin.

Nov. 8, 1927.

Appeal from Circuit Court, Dane County; A. G. Zimmerman, Judge.

Helen Engberg and others and Hazel White were, in separate proceedings before the Industrial Commission, opposed by Martha M. Tewes, executrix of the estate of L. C. Tewes, deceased employer, and others, awarded compensation for the death of Nels Engberg and Ira W. White, respectively. In separate actions brought by the said Martha M. Tewes, executrix, and others against the Industrial Commission, Helen Engberg, and others, and against the Industrial Commission and Hazel White, the awards were affirmed, and plaintiffs appeal. Affirmed.--[By Editorial Staff.]

Workmen's compensation. Two appeals are involved, but the facts are the same in each case. The matters were submitted in a single brief, and they will be treated as a single case here.

On Saturday, January 9, 1926, Ira W. White and Nels Engberg left home about 5 o'clock in the afternoon in a car to go to work for the L. C. Tewes Ice Company. The duties of White and Engberg as employees were to keep the channel open and to keep a fire in the stove in the plowhouse. Their hours of employment were from 6 o'clock p. m. to 6 o'clock a. m. During this period when not engaged in patrolling the channel or tending fires in the plowhouse they were permitted to do as they pleased. The channel was an opening in the ice made for the purpose of floating cakes of ice to the icehouse and was about a mile long. On cold nights the channel was kept open by the use of what was known as a night raft, which consisted of a piece of ice about 32 feet wide and 48 feet long. The raft could be propelled along the channel by hand or by means of a horse, tackle being made fast to the raft by means of a grappling hook. There was no evidence that the raft had ever been propelled by an automobile, and considerable doubt was expressed by the witnesses as to whether it would be possible to do so. The raft was moved up and down the channel to prevent freezing. On the night in question, there was in addition to the raft a piece of ice which had been broken off of the raft when it was being prepared. The superintendent directed White to pull this piece out of the channel. The next morning this piece of ice was found out in the field where White had been told to pull it. The ice raft was “up at the end of the channel.” Whether the witness meant the end near the icehouse or near the opening into the field is not clear.

On the evening of the accident, White and Engberg were last seen alive about 7 or 8 o'clock, and at this time they had lanterns as they started out to work. Their bodies were found in the channel next day. There was no witness to the drowning. One witness testified that they did not see White or Engberg with a horse, but on the night of the accident he had heard White say to Engberg in the early part of the evening: “You get the horse, and I will meet you within three-quarters of an hour in the engine room.” No one saw them start out with the horse, and the next morning the horse was found standing in the barn tied to the manger with the harness on. About three-quarters of a mile from the icehouse White's automobile was taken from the channel. Engberg's body was found about 200 or 300 feet from the end of the channel where it opened into the field. White's body after being dragged some distance was taken from the water about 1,500 feet from where his car was found. When the car was taken from the water there was no rope on the rear axle, no chains on the wheels, and the lights of the car were turned off. The locality where the men's bodies were found was not in the direction of the men's homes from the icehouse. Their watches stopped at about 9:45 p. m. Their lanterns were seen about 1:15 in the morning still burning near the company's building. In the opinion of witnesses the ice did not freeze enough on the nights of January 9 and 10, 1926, to make it necessary to patrol the channel with a night raft, because the weather was mild and the wind was blowing. There was no testimony as to the direction from which White's automobile approached the channel except that of one witness who testified that he had gone out on the ice early next morning after the men were drowned and had seen automobile tracks on the ice near the channel as he was going out to work with the horse attached to a gas plow. He said the tracks came up kind of diagonal to the channel. The witness testified that at the time he observed the tracks he did not know that anything had happened to White and Engberg. The evidence was not voluminous. We have endeavored to state...