Forseth v. Iron River Lumber Co.

124 N.W. 1036, 142 Wis. 87, 1910 Wisc. LEXIS 172

• Court: Wisconsin Supreme Court
• Decided: February 22, 1910
• Status: Published

Opinion

SiebeckeR, J.

It is contended that there is no evidence to sustain the finding of the jury to the effect that the plaintiff’s working place was not a reasonably safe one for want of sufficient light to enable him to see the dark timber coming down the chute. The jury found that this place was not sufficiently lighted to enable plaintiff to see the boomstick as it passed from the upper rollway down the chute and onto the lower rollway, and that the defendant was negligent in omitting to keep a lamp at the place over the chute to furnish the requisite light at this place. The contention is that the evidence fails to sustain the findings of facts embraced in the answers of the jury to the questions of the special verdict. It appears from the foregoing summary of the facts established by the evidence that the plaintiff in performing his service near the lower end of the chute was required to observe the sawed timber coming down the chute to avoid being struck as the timber slid out onto the lower rollway over the place he necessarily occupied in performing his duties. Under the circumstances shown it is manifest that the light provided on the occasion in question was sufficient for observing the freshly sawed, light-colored timbers. The evidence, however, tends to show that because of the dim light plaintiff could not see the dark boomstick as it entered and started down the chute. It also appears that he did not know, nor was lie informed, that such dark timbers were liable to* come through the mill. The evidence is that no such dark timbers had come through the mill while he was working there as •timberman. In the situation presented to him he was justified in believing and in relying on the fact that none but freshly sawed, light-colored timbers would come down the ■chute. Under such circumstances the jury were well justified in finding that the omission of the defendant to keep a lighted lamp in the place provided therefor over 'the chute made it well-nigh impossible for the timberman to observe the dark timber as it was projected over the chute. It is also shown that the timberman working on the rollway avoided the danger of injury from timbers coming down the chute by watching for them and quickly stepping to the side of the main line of rollers. It was therefore sufficiently shown that the dark timber made plaintiff’s working place dangerous through defendant’s omission to light the chute; that the plaintiff had no knowledge of the extra hazard from this boomstick; that he had not been apprised thereof; and that such conduct on defendant’s part was the proximate cause of plaintiff’s injuries. These facts and circumstances warranted the inference that the omission to keep a lighted lamp ■over the chute constituted actionable negligence.

It is claimed that the evidence shows that the plaintiff was fully informed of the way defendant conducted its business; that the peril and danger complained of were open and obvious; that the plaintiff must be held to have assumed them in undertaking the employment; and further, that his failure to observe the boomstick before it struck him amounts to ■contributory negligence as matter of law. iWe do not find that these claims can be sustained in the light of the evidence. The evidence .fails to show that a timberman, looking ■out for freshly sawed timbers in the usual course of his duty, ■could see this dark-colored one, or that he could be apprised •of its approach in any other way, before, as plaintiff testified; it was so close upon him that it was impossible for him to escape injury from it. As stated, the facts in evidence tend to show that because he was unable to see it he was not aware of its approach, although he had kept a lookout. He also-had a right to expect that nothing would come through the mill except the freshly' sawed, light-colored timber. Under such circumstances it cannot be said that this danger was an open and obvious one which plaintiff assumed as incident to his duties. These facts also justified the inference' that the defendant was free from contributory negligence.

It is contended that the damages are excessive. The injury consisted of a breaking of the bones above the ankle and a tearing of the ánkle cords, which resulted in a permanent weakness of the joint and an abnormal turning out of the foot, permanently impairing the use of the foot in walking- and leaving the plaintiff deformed. Under these circumstances we cannot say that the jury’s award of damages is so excessive that we can disturb it.

"We find no prejudice in the admission of the evidence of the witness Odegard. His statements concerning the fact that boomsticks had not come through, the mill that season and that they were “pretty hard to see” were relevant to the issues-litigated and were properly admitted.

There is evidence that the photographs give a correct view and representation of the place and structures where plaintiff was working at the time of the accident. They were therefore properly received.

There is no prejudicial error in the record.

By the Court. — Judgment affirmed.