Zamecnik v. Royal Transit, Inc., 33.

• Decision Date: 02 December 1941
• Docket Number: No. 33.,33.
• Parties: ZAMECNIK v. ROYAL TRANSIT, Inc., et al.
• Court: Wisconsin Supreme Court

239 Wis. 175

300 N.W. 227

ZAMECNIK

v.ROYAL TRANSIT, Inc., et al.

No. 33.

Supreme Court of Wisconsin.

SMITH

v.SAME.

No. 120.

Oct. 7, 1941.

Rehearing Denied Dec. 2, 1941.

Appeals from judgments of the Circuit Court for Milwaukee County; Gustave G. Gehrz, Judge.

Affirmed.

In Case No. 33 the action was brought by Frank J. Zamecnik against the defendants Royal Transit, Inc. (a Wisconsin corporation), Royal Transit, Inc. (an Illinois corporation), Central Surety & Insurance Corporation, and Allis-Chalmers Manufacturing Company, to recover damages from all excepting the latter defendant for personal injuries sustained by plaintiff as the result of negligence of the defendants, Royal Transit, Inc. The injuries were sustained while Zamecnik was in the employment of Allis-Chalmers Manufacturing Company, which was joined as a party defendant under Sec. 102.29, Stats., to recover from the other defendants the expenses and disbursements incurred on behalf of Zamecnik under the Workmen's Compensation Act. Under allegations in the complaint, answers and a cross-complaint of the Allis-Chalmers Manufacturing Company, issues of fact were joined upon which there was a trial by jury, at the conclusion of which, each of the parties moved for a directed verdict. Thereupon the entire case was considered to be submitted to the court on issues of fact as well as law pursuant to sec. 270.26, Stats.; and the court made findings of fact and conclusions of law upon which judgment was entered dismissing the action against the Royal Transit, Inc., of Wisconsin and adjudging the recovery by plaintiff of $62,500 damages from the Royal Transit, Inc., of Illinois and of $45,000 thereof from its automobile liability insurer, the Central Surety & Insurance Corporation; and for future determination of reasonable costs of collection and the division, pursuant to Ch. 102, Stats., § 102.01 et seq., as between plaintiff and Allis-Chalmers Manufacturing Company, of the amount recovered from the Royal Transit, Inc., of Illinois and its insurer.

In Case No. 120 the action was brought by the administratrix of the estate of Warren Shrake, deceased, against the same defendants as in Case No. 33 to recover damages from all excepting the Allis-Chalmers Manufacturing Company for the death of Warren Shrake as the result of the same negligence on the part of the defendants Royal Transit, Inc., upon which Zamecnik based his cause of action. As Shrake was likewise in the employment of the Allis-Chalmers Manufacturing Company, it was joined as a defendant to enable it to recover its disbursements under the Workmen's Compensation Act. Upon the death of Shrake's father the administratrix's complaint was dismissed, but the action was continued on the cross-complaint of the Allis-Chalmers Manufacturing Company to recover $1,200 paid to the state treasury under Ch. 102, Stats. As the issues under the pleadings in two actions were virtually the same excepting that in Case No. 120 there was involved also an issue as to Shrake's contributory negligence, the actions were consolidated for trial and it was stipulated that all evidence taken was to be applicable in both actions. The findings, conclusions of law and judgment are virtually the same in each case, excepting that in Case No. 120 there are the additional findings and conclusions of law that Shrake's death was proximately caused by the negligence of the Royal Transit, Inc., of Illinois; that no negligence on his part contributed to produce his death; and that Allis-Chalmers Manufacturing Company is entitled to recover from that defendant and its insurer $1,200 and costs. Judgment was entered accordingly and Royal Transit, Inc., of Illinois and its insurer appealed from the judgment in each action. In No. 33:

Dougherty, Arnold & Kivett, of Milwaukee, for appellants Royal Transit, Inc., and Central Surety & Ins. Corporation.

Eugene Wengert, of Milwaukee, for appellant Royal Transit, Inc.

B. F. Saltzstein and Gold & McCann, all of Milwaukee, for respondent.

In No. 120: Dougherty, Arnold & Kivett and Eugene Wengert, all of Milwaukee, for appellants.

Lines, Spooner & Quarles, of Milwaukee (Charles B. Quarles and Irving T. Babb, both of Milwaukee, of counsel), for respondent.

FRITZ, Justice.

Frank Zamecnik (plaintiff in Case No. 33) was injured and Warren Shrake (on account of whose death recovery is sought in Case No. 120) was killed at the plant of the Allis-Chalmers Manufacturing Co. (hereinafter called Allis Co.) at West Allis, upon being knocked down by a set of three steel plates, which fell off the side of a platform of a truck owned and operated by the Royal Transit, Inc., of Illinois (hereinafter called Illinois Co.). The truck was loaded under the direction of Myron Kellogg, a truck driver employed by the Illinois Co., at the plant of Scully Steel Products Company in Chicago with some bar steel to be shipped to various destinations in Wisconsin, and also six steel plates ordered by the Allis Co. to be delivered at its West Allis plant. Along the sides of the platform of the truck there were wooden stakes placed in steel stakeholes just inside the edge of the platform, and at each of the outer sides of the platform there were two heavy steel hooks or stirrups hanging down from the platform. Three of the steel plates, each of which was 12 feet long, 10 feet wide, 5/16 of an inch thick and weighed 1750 pounds, were loaded as a set on each side of the truck, by means of a loading crane, so as to stand upright on the metal stirrups hanging below the outer sides of the truck platform and rest against the wooden stakes on the inner side of each set of the plates. Thereupon Kellogg, to securely fasten the sets of plates, placed two heavy iron hooks on the top of each set of plates near the ends thereof and then attached a long chain to the iron hook, which was on the top near the rear end of the plates on the left side, and ran that chain thence diagonally downward to and through a stakehole on the right side at the rear end of the platform, and from there forward under and along the platform to and through another stakehole near the front of the right side of the platform, and then above the platform fastened the chain by means of a binder clamp, operated by a lever, to a shorter chain which then extended diagonally upward toward the front end of the set of plates on the left side where it was attached to the iron hook which Kellogg had placed there. The set of plates on the right side was set upright in stirrups and fastened in the same manner. Before finally closing the binder clamp, Kellogg tightened the chains by pulling them together with the binder lever so that there was no slack in the chains, and the tops of the steel plates were sprung inward. When Kellogg in driving to Milwaukee reached a point about halfway he found a discarded iron bed spring along the roadside and placed this spring, which was about 6 1/2 feet long, as a brace and additional precaution to prevent the tension of the chains from causing the plates to collapse inward, between the sets of steel plates near the rear end and there fastened the spring to the upper part of the set of chains holding the plates in place. Kellogg arrived with the loaded truck at Milwaukee on Saturday afternoon, after the Allis Co.'s plant had been closed and it was too late to make delivery of the plates. Therefore he drove the truck to the place of business and yard of the defendants in Milwaukee, and it was left there in its loaded condition until the plates could be delivered to the Allis Co. on the following Monday morning. Then Julius Schultz, another truck driver employed by the Illinois Co. drove the truck with its original load to the receiving department of the Allis Co. plant in the nearby city of West Allis to deliver the steel plates to the consignee. Because of their size, weight and unwieldy nature, it was necessary, in order to unload them at the Allis Co. plant, to attach to each set of the plates the hook of the overhead crane so that they could be lifted from the truck. Shrake had been directed as an employe of the Allis Co. to assist in hooking the crane onto the plates. To do that he had to first place and fasten a heavy C-clamp at the top of each set, and he first attempted to do so on the left side set while standing on the platform between the two sets of plates. He was unable to reach up to...