Webster v. Luick Ice Cream Co.
| Decision Date | 09 April 1914 |
| Citation | 156 Wis. 576,146 N.W. 815 |
| Parties | WEBSTER v. LUICK ICE CREAM CO. ET AL. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a Judgment of the Circuit Court for Milwaukee County; John C. Ludwig, Circuit Judge. Affirmed.
Action for a personal injury.
The evidence, which was competent and material under the proceedings, established, or tended to establish, this: Into a public alleyway on which a barn abutted, on the 11th day of August, 1911, defendants' servants drove a team of horses drawing a wagon loaded with sacks of oats. The purpose was to unload the grain into the barn. The wagon was located alongside the building and operations commenced by means of a block and tackle. The appliance was so attached and operated by horses as to raise the sacks of grain from the wagon to a door in the third story of the barn. The rope ran through a pulley near the ground. As the horses moved away from such pulley the rope was near enough to the ground to be within easy reach of young children and liable to endanger their safety if they meddled with it. Plaintiff and other children did that and were ordered away. They remained nearby till a kink formed in the rope which needed to be straightened out before the work could go on. Thereupon, the driver, instead of dropping his lines and restoring the rope to a working condition, requested plaintiff to do it. The man on the wagon, who had general charge of the work, interfered and ordered the boy away. The teamster persisted a while and then repeated his request to the boy and in the manner of an order. The man on the wagon said nothing further. The boy now proceeded as he was told by the teamster without further objection from the man on the wagon. As the boy took hold the rope near the pulley, the teamster, negligently, caused the horses to suddenly start whereby the former's hand was drawn into the pulley and injured.
The jury found plaintiff to have been injured as indicated; that defendants' servants did not know, but ought to have known, that plaintiff had hold of the rope when the horses started; that such servants did not exercise ordinary care to prevent plaintiff from incurring danger from handling the rope; that such fact was the proximate cause of the injury; that plaintiff neither knew, nor could reasonably have been expected to know, that his hand was likely to be caught when the horses commenced to move, and was not guilty of want of ordinary care proximately contributing to his injury, and that he was damaged to the amount of $3,000. Judgment was rendered for plaintiff accordingly.
Quarles, Spence & Quarles, of Milwaukee (I. A. Fish, of Milwaukee, of counsel), for appellant.
Cary, Upham & Black, of Milwaukee, for respondent.
Counsel for appellant present several matters for consideration which seem beside the case. A recovery was neither sought nor obtained upon the ground that the relation of master and servant existed between plaintiff and defe...
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