Hamann v. Milwaukee Bridge Co.

106 N.W. 1081, 127 Wis. 550, 1906 Wisc. LEXIS 190

• Court: Wisconsin Supreme Court
• Decided: March 20, 1906
• Status: Published

Opinion

MaRShalx,, J.

Meyers was a fellow-servant of deceased.'

That seems plain. He was a mere foreman engaged with a •crew of assistants, supplied with suitable material and appliances, in performing a mere detail of appellant’s business. It is not claimed, as we understand it, that he was guilty .of any fault other than in failing to choose a proper plan for accomplishing the removal of the machine from the car, and •omitting to exercise due care to acquaint his assistants of the dangers of the operation, in the way it was done. Those were mere incidents of the work, the same as constructing the skidway, arranging the rope to control the movement of the machine, locating the men in their proper places to assist in the work, and directing them generally in and about the same. In all cases of that sort the foreman is a mere comrade with the men under him. The fault, if there is any, so long as there is no precedent want of care in his employment, is that of a fellow-servant, for which the master is not liable. Such fault is one of the ordinary risks assumed by an employee as a part of his contract. The facts of this case are so clearly within that principle, and the rule itself is so familiar, that it seems useless to discuss the matter. The following cases are directly in point: Peschel v. C., M. & St. P. R. Co. 62 Wis. 338, 21 ; Portance v. Lehigh Valley C. Co. 101 Wis. 574, 579, 77 N. W. 875 ; Wiskie v. Montello G. Co. 111 Wis. 443, 87 N. W. 461; Williams v. North Wis. L. Co. 124 Wis. 328, 102 N. W. 589; Alaska M. Co. v. Whelan, 168 U. S. 86, 18 Sup. Ct. 40.

As to whether the foreman was incompetent, or if he was, defendant was negligent in directing him to do the work, we fail to find any warrant for the verdict independently of what occurred on the occasion in question. It is undisputed that he was one of the most trusted employees engaged in appellant’s large business. He had forty or fifty men under his general charge at the time of the occurrence. That place of trust and confidence he had filled for a considerable period of time. He was thirty-seven years of age. As indicated in the statement, he had a general knowledge of heavy machinery and the manner of moving the same, and there was nothing in his history to suggest incompetence, or impropriety in selecting him to unload the machine. Incompetence, in the law of negligence, means want of ability suitable to the task, either as regards natural qualities or experience, or deficiency of disposition to usé one’s abilities and experience properly. Maitland v. Gilbert P. Co. 97 Wis. 476, 72 N. W. 1124; Kliefoth v. N. W. I. Co. 98 Wis. 495, 74 N. W. 356. The evidence here, as to occurrences up to the time the foreman was directed to do the work, not only does not prove he was incompetent for the task, but rather proves affirmatively the contrary. We are unable to find a scintilla of evidence of any circumstances calculated, reasonably, to put appellant on guard against doing what it did in that regard. It had good reason to believe that he possessed all the ability, the experience, and the disposition requisite to the proper performance of the undertaking.

Aside from the circumstance of the superintendent coming upon the ground before the accident in ample time to have remedied the dangerous way the machine was being moved, if there were fault in that regard, either by counteracting, in some way, the tendency thereof to tip over by a moderate disturbance of the same, if such tendency existed, or by specially warning the employees of the danger, no cause of action was established by the evidence. Fitzsimmons was not a foreman, lie did not engage in any way as a fellow-servant in moving the machine. He had charge of the entire business as general manager and was a vice-principal most clearly. He arrived on the scene, as indicated in the statement, when the machine was about halfway down the incline. He saw the whole situation at a glance, and must have then comprehended whatever dangers were incident to the work in the way it was being conducted, noticeable to a man of ordinary care circumstanced as he was. In any event, he is chargeable with having so comprehended, and that is imputable to the defendant. As rsoon as he arrived, as we have seen, he directed replacement in proper position of one of the rollers, and thereafter remained by, closely observing the work, till the accident occurred. He was the first to note the tipping of the machine and to give notice thereof to those who were within the region of danger. Prior thereto he made no suggestion of danger in continuing the work as he found it in progress. It seems that he virtually took charge thereof upon his arrival, but in any event he could not stand by, as he did, and defendant escape responsibility for what occurred upon the plea that the negligence, if negligence there were, was that of the foreman, a fellow-servant. The authority cited to our attention with much confidence on this, Ziegler v. Bay, 123 Mass. 152, does not appear to be at all in point. The superintendent, there spoken of, was a mere foreman, the principal was hot on the ground at the time of the accident, or prior thereto, so as to be chargeable with knowledge of the manner the particular work was done which led to the happening of the accident. Not so here, as indicated.

Here the principal in the person of Fitzsimmons was on tbe ground. Through him it knew and approved of the manner of the work before the accident. It is, therefore, chargeable the same as if its superintendent had laid out the plan for doing the work at the outset, leaving as matter of detail, only the execution thereof.

The question of whether such danger as existed in the manner of work adopted was open and obvious to an ordinary man, so that the deceased and appellant stood on the same plane, was at least for the jury. There is reasonable ground for saying the machine was of such shape and character, particularly on account of the hollow base, the extent thereof, and the location of the center of gravity some forty inches above the same, or within about twenty inches of the top of the framework, that an ordinary man might not have comprehended the extent of disturbance liable to cause it to tip over,, or the danger of such disturbance occurring under the circumstances, while such danger might have been plain, or reasonably so, to one familiar with such a machine. If Fitzsim-mons, as one chargeable with such superior knowledge, saw or ought to have seen the impropriety in moving the machine" without some efficient means to insure it against tipping over,, he should have called attention thereto as soon as he had reasonable opportunity therefor, and either stopped the further progress of the work till the proper remedy was applied, or notified those who were at the work of the danger. He did neither, so far as appears. By his attitude he approved in every respect of the manner the work was being done. That might well have been regarded as an assurance of safety by the inexperienced men. Upon the trial he still insisted that the method of work was proper. Whether there was actionable fault in that regard, it seems, was a fair jury question.

Manifestly, the result on the last point treated is not material, unless there is evidence warranting a finding that the machine tipped over by reason of the rollers being only under the sixteen-inch base. Bearing in mind that, according to the evidence, there was no disturbance whatever of the east side of the skidway preceding or during the progress of the accident; that at the instant the machine began to tip and until it was wholly out of balance, the skidway was in perfect form, and the rollers likewise, and that the event took place without anything suggesting the probability of the thing happening before it occurred, or anything explaining it thereafter, it stands, so far as explained by witnesses, as a miraculous occurrence. One may conjecture how it occurred, but that is all.

Counsel for respondent comprehended the difficulty suggested at the time of drafting the complaint and solved it, seemingly, upon the theory, in good faith, that when the machine rested wholly on the narrow base the center of gravity was on a line perpendicular with a point outside thereof. However, a little reflection is sufficient to convince one that it could not have been on a line perpendicular with a point outside of the base on both sides. Therefore it must be assumed that the pleader supposed the machine was much heavier on one side than on the other: of which there is no support whatever in the evidence. One or two witnesses testified, in effect, •that the center of gravity was somewhat on a balance so that -a slight displacement of the machine was sufficient to disturb its equilibrium, and so counsel for respondent now claims; .'but we find no evidence whatever to support any such theory. 'The pictorial representation of the machine, in connection with the evidence, shows beyond any room for controversy that it was perfectly balanced, one side being the same weight as the other, with the center of gravity located some forty inches above the base and on a vertical line from the center thereof.

It does not require evidence from the mouths of witnesses to picture to the mind the position the machine must necessarily have assumed before the vital gravity point could have been on a line perpendicular with one outside the base, throwing the machine so ont of balance as to canse it to tip over. That is a matter of such exact demonstration that any amount of evidence from the mouths of witnesses to the contrary could not change it. It is one of those situations which is not only unimpeachable but will impeach all evidence contradicting it.

Assuming, as we must, from the evidence, that the side of the skidway remained in proper position, the highest point on the machine: the top of the geared wheel.must have moved to the east about a foot, the top of the frame not much less, and the west projection of the base raised some four inches, before the apparatus became out of balance. As it weighed nearly 6,000 pounds it can easily be seen it would not have been possible to tip it over' by any disturbance the evidence discloses occurred.

Each side of the machine weighed nearly 3,000 pounds. It would not be a very easy task for one to upset such a body so located. If the skid on the side'towards which the machine tipped had settled a very few inches, what occurred would have been inevitable. However, as the case stands, as before indicated, the occurrence is wholly unexplained. The jury had nothing to guide them but the merest conjecture. That furnishes no efficient basis for a verdict. Hyer v. Janesville, 101 Wis. 371, 77 N. W. 729; Musbach v. Wis. C. Co. 108 Wis. 57, 84 N. W. 36; Mueller v. Milwaukee, 110 Wis. 623, 86 N. W. 162.

As said in the first case above cited, it is incumbent on the plaintiff, in a case like this, to show with reasonable distinctness how and why the accident occurred. It will not do to merely present to a jury a state of facts involving a claim for damages for a personal injury, and relations of the parties which would, under some circumstances, render the defendant liable, without any proof whatever, or any reasonable definite proof, of the existence of such circumstances, and then leave it to the jury to guess whether they did or did not exist in fact, and to base a verdict upon the result. Unless the evi-deuce, in respect to such, a matter, is sufficient, clearly, to remove the truth of the matter from the realms of mere conjecture into those of reasonable probability, no question in respect thereto is presented for solution by the jury, — only a question of law for the court.

It was error to allow opinion evidence as to whether the manner of moving the machine was proper. This has reference to considerable expert evidence permitted under objection, that the work was done in a dangerous way. That invaded the province of the jury. There are instances in which opinion evidence may properly be given as to the very point the jury are to decide. Maitland v. Gilbert P. Co. 97 Wis. 476, 72 N. W. 1124; Lyon v. Grand Rapids, 121 Wis. 609, 619, 99 N. W. 311. They are confined to eases where such point is clearly within the field of expert evidence and the opinions offered are based on undisputed facts, or assumed facts warranted by the record.

Where a matter relates to whether a particular machine, place, or mode of doing business is dangerous, and such danger is not sufficiently latent but what the jury can as well form a reliable opinion in respect thereto as an expert, when put in possession of all the facts causing the peril, and that can readily be done, opinion evidence is not admissible. This court has, quite recently, on two occasions, so ruled. Olwell v. Skobis, 126 Wis. 308, 105 N. W. 777; Anderson v. Chicago B. Co., ante, p. 273, 106 N. W. 1077.

The rule allowing opinion evidence as to whether a particular situation is perilous in some cases, is quite familiar, but it will be found, it is thought, on examination of the authorities, not to extend beyond those situations where the jury, after having all the facts presented to them as clearly as practicable, cannot form an opinion which is as reliable as that of the expert. The following are examples of where such evidence has been held proper, or illustrate the principle of • the rule: Innes v. Milwaukee, 103 Wis. 582, 79 N. W. 783; Daly v. Milwaukee, 103 Wis. 588, 79 N. W. 752; Ogden v. Parsons, 23 How. 167; Transportation Line v. Hope, 95 U. S. 297; Spring Co. v. Edgar, 99 U. S. 645; Union Ins. Co. v. Smith, 124 U. S. 405, 8 Sup. Ct. 534; Lewis v. Seifert, 116 Pa. St. 628, 11 Atl. 514; Huizega v. Cutler & S. L. Co. 51 Mich. 272, 16 N. W. 643; Louisville, N. A. & C. R. Co. v. Frawley, 110 Ind. 18, 9 N. E. 594; Pullman P. C. Co. v. Harkins, 55 Fed. 932, 5 C. C. A. 326. Sucb evidence as that under consideration is not inadmissible merely because the subject matter is outside of the field of “science, art, or still” technically speaking. The scope of expert evidence is not thus restrained. It extends to every subject in respect to which one may derive, by experience, special and peculiar knowledge. Schwantes v. State, ante, p. 160, 106 N. W. 237; Lawson, Exp. Ev. 239; 1 Wharton, Ev. (3d ed.) § 44. When the evidence is excluded because the subject of the inquiry is a matter of common knowledge, as it sometimes is, the real reason of the exclusion is that it is not expert evidence at all. It is not all opinion evidence that is expert evidence nor is all the latter admissible, as one may give an opinion as to a matter known to people generally. The opinion must fall within the field of expert evidence to-be admissible. In short, it must be an expert opinion, and then it is not necessarily admissible. It should be excluded, as we have seen, as to some subjects, when the jury can be afforded an opportunity to form an opinion as intelligent and reliable as the expert, and when that is clearly so it is harmful error to admit it.

Just when the rule above discussed applies and when it •does not, strictly on principle, is somewhat difficult to determine. The question as it arises in practice is in the field of competency, and therefore .the ruling of the trial court, in any -case, should not be disturbed except where it appears pretty clearly to be erroneous. Such appear to be the rulings under consideration in the light of the recent decisions of this court to which we have referred. They must be read, However, Having regard to tHe rule tHat sucH opinion evidence, in a proper case, is permissible. THere was no difficulty whatever, in the instances in question, in explaining to tlie jury all of tHe elements rendering tHe manner of doing tHe work adopted perilous, wHicH were not matters of common knowledge. Placed in possession of suck elements, tHe result was governed by natural laws of a familiar character. THe proof should Have been made in that way with other of the general manner, if there be such, of doing like work, and then it should Have been left to the jury to determine whether ordinary care was exercised in respect to the method adopted for moving the machine or not.

THe general result is that the judgment appealed from must be reversed and the cause remanded for a new trial.

By the Court.- — So ordered.