Walsh v. Wild Masonry Co., Inc.

• Court: Wisconsin Supreme Court
• Writing for the Court: HEFFERNAN
• Citation: Walsh v. Wild Masonry Co., Inc., 72 Wis.2d 447, 241 N.W.2d 416 (Wis. 1976)
• Decision Date: 30 June 1976
• Docket Number: No. 689,689
• Parties: Edward WALSH, Jr., Respondent, v. WILD MASONRY CO., INC., Appellant. (1974).

Page 416

241 N.W.2d 416

72 Wis.2d 447

Edward WALSH, Jr., Respondent, v. WILD MASONRY CO., INC., Appellant.

No. 689 (1974).

Supreme Court of Wisconsin.

Submitted April 12, 1976.

Decided May 4, 1976.

Rehearing Denied June 30, 1976.

Aberg, Bell, Blake & Metzner, S.C., Madison, on brief, for appellant.

Robert R. Studt and Jenswold, Studt, Hanson, Clark & Kaufmann, Madison, on brief, for respondent.

HEFFERNAN, Justice.

The plaintiff, Edward Walsh, Jr., was injured while working at a construction site which was under he general control and supervision of Wild Masonry Co., Inc. The injury occurred when Walsh stepped onto a hoist that was used to lift bricks to the level of the building that was under construction. The frayed cable supporting the hoist snapped, and Walsh plummeted to the ground with the load of bricks. He sustained severe injuries.

The trial judge sustained the jury's verdict that found Wild Masonry 60 percent negligent and Walsh 40 percent negligent. Damages were awarded to Walsh in the amount of $50,243.61, which were reduced, as the result of the comparison of negligence, to the judgment award of $30,146.17. Wild Masonry Co., Inc., appeals from the judgment.

We conclude that the trial judge erroneously instructed the jury that the workman's duty of care for his own safety was minimized as the result of a momentary diversion of attention or preoccupation. The record is devoid of any evidence showing that Walsh's attention was diverted or that he was so preoccupied as to overlook a hazard. This instruction was erroneous and prejudicial. We reverse.

The record reveals that Wild Masonry was employed as a subcontractor in the construction of a shopping center in Madison, Wisconsin. Walsh was a laborer employed by the general contractor, but he was assigned to work with Wild Masonry as a laborer. His duties at the time of the accident included the operation of a hoist, which was used to lift bricks to the position where they could be used by the masons. The hoist, which belonged to Fass Brothers, had not been used for a period of approximately three years. During that time, it was kept in Fass' outdoor storage yard, and only the motor part of the hoist was protected from the elements. The hoist platform was lifted by a pencil-thin cable consisting of three intertwined woven steel strands.

Walsh's job was to load bricks and mortar onto the hoist platform by the use of a forklift, and he then operated the hoist to raise those materials to a higher building level. The hoist was operated by the use of controls that were located beside the lift on the ground level. Riding on the hoist was prohibited by the rules of the Department of Industry, Labor, and Human Relations.

On the day of the accident, May 6, 1971, Walsh noticed that the cable had become frayed and that a strand of the cable was severed. He reported this to Erickson, the labor foreman for Wild Masonry, and to Faust, the mason foreman for Wild Masonry. Erickson examined the cable, relayed the information to the office of Wild Masonry, and was told that the cable would be repaired by the next morning. Erickson was not told, however, that the machine should be shut down, nor did he tell Walsh that he should cease operation of the hoist, although at trial he acknowledged that he should have done so.

Walsh was an experienced machine operator, and he knew the hazards of operating the hoist with a weakened cable. He also knew that, under the union rules, he had the right to shut down the machine if he considered it unsafe.

During the course of the day's work, the cable snapped, dropping the hoist, its load of bricks, and Walsh some 30 feet. It is clear that Walsh was on the lift at the time of the accident, but how he got there is disputed. Walsh testified that he sent the hoist to the level where the masons were working, and when no one appeared to unload the bricks, he climbed a nearby ladder; and when he found no one there to unload the hoist, he stepped on the platform, with the intention of unwiring the bricks. He testified that the hoist fell just as he stepped onto it.

There was no testimony to show that, on this occasion, Walsh had ridden the hoist up to the higher level, and there is no evidence to show that he had ever done so. Erickson, the labor foreman, testified, however, that, just before the accident, he looked down the hoist shaft and saw the bricks loaded on the hoist but did not see Walsh. He testified that he then went down the ladder to see if he could locate Walsh. The ladder that Erickson claims he descended was the same ladder which Walsh claims to have climbed to get to the upper level. Just as Erickson started down the ladder, he heard the hoist mechanism start up. He heard the hoist crash to the ground before he reached the bottom of the ladder.

The evidence is in direct conflict, but as the trial judge stated, apparently the jury chose to believe Walsh and not Erickson. There was, on the other hand, testimony that, while in the hospital shortly after the accident, Walsh, without stating that he had been riding on the hoist at the time of the accident, said to a former employer that it could be used to ride to an upper level.

The hoist fell because of the break in the cable. An automatic braking mechanism failed because of the shearing of a bolt during the fall.

The jury found no negligence on Fass Brothers, the owner of the hoist, and apportioned 40 percent of the negligence to Walsh and 60 percent to Wild Masonry.

All of the appropriate motions after verdict were made by the defendant, and any errors alleged are preserved on appeal. There is no appeal from that portion of the verdict and judgment which dismissed the complaint against Fass Brothers. That judgment is not questioned on appeal.

While the defendant on appeal cites numerous errors, we find only one meritorious and controlling. That error compels the reversal of the judgment and a remand for a new trial.

An instruction which we find erroneous and prejudicial to Wild Masonry was requested by counsel for Walsh and given by the trial judge. The essence of that instruction is contained in Wisconsin Jury Instruction--Civil, Part I, 1051. Such instruction is appropriate under facts which indicate that a workman was diverted in his attention or was preoccupied to the extent that he could not be expected to use a usual degree of care for his own protection. The instruction, as finally given by the trial judge, was:

'You are further instructed that momentary diversion of attention or preoccupation of a workman in the discharge of his duties minimizes the degree of care required of him in the absence of such diversion or preoccupation.'

At the time this instruction was first requested, the trial judge properly refused that instruction, stating:

'It's only a lesser degree of care when you were diverted, and there is no indication here he was diverted. . . . I am going to use the standard of an ordinary workman under the facts and circumstances of this case. . . . Where there is an indication or testimony he was pre-occupied, then it is; but there is no testimony here he was pre-occupied. . . . he didn't testify he had so many things on his mind he didn't know what he was doing.'

After a short recess, the trial judge, without explanation, stated that he would give the requested instruction. He also, at that time, stated that he would also instruct the jury to the effect that the degree of care or diligence which a workman should exercise for his own safety varies with the circumstances That additional instruction, which was given to the jury, recites:

'While the rule that a workman must exercise ordinary care for his own safety never changes, the degree of care or diligence which a workman must exercise to come up to the standard of ordinary care varies with the circumstances naturally calculated to affect or increase the hazard of an accident or injury. The greater the danger which is or may be apparent to an ordinarily prudent workman under the circumstances existing, the greater must be the degree of care which must be used to guard against such danger.'

This instruction was also objected to. The trial judge apparently felt, however, that this later instruction sufficiently ameliorated or explained the effect of the diversion instruction, that possible prejudice under the diversion instruction would be avoided, because it called to the jury's attention that the degree of care which a workman must exercise depends upon the circumstances. While that is undoubtedly true, it constitutes mere surplusage, because it does not undo the prejudicial effect of instructing a jury in respect to evidence that is that made a...