Zarnik v. C. Reiss Coal Co.

• Decision Date: 05 November 1907
• Citation: 113 N.W. 752,133 Wis. 290
• Parties: ZARNIK v. C. REISS COAL CO.
• Court: Wisconsin Supreme Court

133 Wis. 290

113 N.W. 752

ZARNIK

v.C. REISS COAL CO.

Supreme Court of Wisconsin.

Nov. 5, 1907.

Appeal from Circuit Court, Manitowoc County; Michael Kirwan, Judge.

Action by Mike Zarnik against the C. Reiss Coal Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This action was commenced by the plaintiff, who was engaged in the coal yards of the defendant in the city of Manitowoc, Wis., to recover damages for personal injuries sustained by him on Monday, July 18, 1904. At the time of the injury the defendant was engaged in running cars of coal over its tracks in its yard upon a trestle some 30 feet above the place where plaintiff was at work, unloading soft coal from the steamer Siberia, and several cars were being operated along the tracks for that purpose. The plaintiff was a laborer, and had been working around the coal docks for several years. He was at work on the ground level under the track where the cars were being operated. There was a cable in constant motion, running from west to east, turning a loop at the end of the dock, and running thence on what was called“track No. 4,” along the south side of the dock; then coming to another loop or curve, and turning toward the north, until it came upon the straight track running east and called “track No. 3.” The cars are gripped on the cable, and the cable keeps turning around the loops, and takes the cars all around the dock and around the curve or loop upon the trestlework. The rails on which the cars run are 27 inches apart. The cars are made to a bevel; that is, the top is wider than the bottom. At each side of the car is a door, and at each side of the door are two latches, and there are two hooks at the bottom of the car into which the latches go. There is a grip at the front of the car which grips the cable; also slides back of the car and levers. The slides go underneath the car, and the hooks fasten into the slides below. When the slides work, the hooks work on the slides and release the door. There is a plank over the top of the door on which the hinges are placed, and also one hinge from the bottom of the car, through which is a bolt upon which the door swings. The purpose of the catches is to hold the door closed, and do hold it closed when the latch on the car door is in the hook. Underneath the car on each side is what is called a “slide.” Hooks are placed on this slide, and are attached to the lever at the rear of the car. The door opens with the lever at the rear, and also with the grip or tripper, which is underneath the car. When the slide moves forward, the catches move to the back end, and thus release the door. When the slide is moved backward, that throws the hooks ahead again and closes the door. Every 12 feet are two planks in which there are holes, also bolts, and when the tripper gets over this block it opens the car--releases the door. The cars are also provided with handles, the purpose of which is to dump the coal in case there are no dump planks. This handle is placed in the back end of the slot of the slide. It fits pretty tight, and is attached to the back of the car by a kind of clamp, into which the handle fits with a bolt through it. The handle turns at a point where it connects with the car, and at the point where attached to the car it is bent off on an angle to regulate the slide, so that the hook will catch on the latches good. At the time of the injury this handle was bent about 1 1/2 inches, and the actual bearing of the catches on the latches of the door was not more than about half an inch. The plaintiff was at work at the hard coal shed at a point just beneath the trestle where the cars turned from track No. 4 to No. 3, and the door of the car, by reason of being improperly locked on account of the defective lever, opened and dumped the coal upon plaintiff, causing the injury complained of.

The jury returned the following verdict: “First question: Was the falling or dumping of the coal from car No. 14 upon the plaintiff caused by the opening or release of the left-hand door of the car when it was passing above the place where plaintiff was then working? Answer (by the Court): Yes. Second question: At that time, was it the fact that the left handle or lever, which was at the back of the car and was used for dumping the car by hand, was not sufficiently bent at the point where it turns on a pivot so as to allow the slide to which the locks or catches are attached to spring back far enough for the catches to grasp and hold with reasonable safety the iron projections on the left door of the car? Answer: Yes. Third question: Was the car, in the usual operation thereof, subjected to some degree of jarring or straining in passing over the loop or curve in the track above the place where plaintiff was working when injured? Answer: Yes. Fourth question: If your answer to the second question be ‘Yes,’ then was the defective condition of the lever, which your answer to the second question finds to have then existed, the cause of the opening or release of the left door when the car passed, or soon after it passed, over the loop and onto the track or trestle No. 3, and was just above the place where plaintiff was working when injured? Answer: Yes. Fifth question: If your answer to the fourth question be ‘Yes,’ then, on the morning of the day on which plaintiff's injury occurred, and before it occurred, was defendant's assistant foreman, Adler, informed by defendant's employé, Julius Biermann, that the lever was defective? Answer: No. Sixth question: If your answer to the fourth question be ‘Yes,’ then did defendant, through either of its proper representatives who were charged with the duty of inspecting and keeping the cars in proper condition and repair, have actual notice or knowledge of the defect in the lever in time to have repaired it or to have taken the car off from the track, in the exercise of ordinary care and diligence, and before the plaintiff was injured? Answer: No. Question 6 1/2: If your answer to the sixth question be ‘No,’ then if the defendant, through its said representatives, had exercised ordinary care and vigilance in such inspection, would said representatives or either of them have thereby learned of the defect in the lever in time to have repaired it, or to have taken the car off from the track, in the exercise of the aforesaid degree of care and diligence, and before plaintiff was injured? Answer: Yes. Seventh question: If your answer to either the sixth question or to question 6 1/2 be ‘Yes,’ then was the failure of the defendant, through its said representatives, to repair the defect in the lever, or to remove the car from the track before plaintiff was injured, the proximate cause of his injury? Answer: Yes. Eighth question: If your answer to the fourth question be ‘Yes,’ then (1) did the plaintiff know, or (2) by the exercise of ordinary care on his part, would he have learned, of the defective condition of the lever before he was injured? Answer: (1) Plaintiff did not know. (2) By the exercise of ordinary care he would not have so learned. Ninth question: Was plaintiff guilty of any want of ordinary care on his part which contributed to produce his injury? Answer: No. Tenth question: If the court shall be of the opinion that plaintiff is entitled to judgment in his favor, what sum will reasonably compensate him for his injury? Answer: $1,350.”

Judgment for plaintiff upon the verdict was entered for the sum of $1,350, together with interest and costs. The defendant appeals and assigns error.

Vilas, Vilas & Freeman, for appellant.

Baensch & Kelly and E. L. Kelley, for respondent.

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

The first contention made by appellant is that the court erred in denying defendant's motions for nonsuit, directed verdict, to amend the verdict, and for judgment notwithstanding the verdict. This argument involves the sufficiency of the evidence to support the findings of the jury. The negligence relied upon was the defective condition of the car, in consequence of which the car door became open at a point before the dumping place was reached, and dumped the coal upon the plaintiff. The evidence tends to establish that the lever at the back of the car used for hand dumping did not have sufficient bend, so as to admit of proper locking of the door latch of the car, in consequence of which, while the car was running upon the track, the door became open and suffered the load to dump upon plaintiff. There is evidence that a door latched or locked in the manner in which the car door in question was at the time of the injury was defective, dangerous, and liable to come open while the car was running upon the track; that the operation of the car on the...