Scieczinski v. Filer, & Stowell Co.

133 N.W. 641, 147 Wis. 533, 1911 Wisc. LEXIS 260

Opinions

Timlif, J.

A pile of brick in the cupola room of defendant’s foundry fell upon plaintiff, injuring him severely, while Ee was in the employment of defendant and engaged in removing with a wheelbarrow slag and cinders from this room. The room was so small in proportion to the quantity of brick required to be piled therein that- the brick pile extended from the square frame at the bottom of the cupola to the door of the room, a length of about eight feet, and piled three brick or twenty-four inches wide would be about the limit of width which could be had, leaving room to open the said door and 'leaving space for plaintiff to work. With what brick there was already piled in this room the quantity brought in on the ■occasion in question raised the pile of the stated width and length to about twelve feet in height. The floor of this room was a bed of dirt and cinders, concave in the center, with a slight slant if any from the walls toward this center. The •defendant designated the place upon this floor where the brick •should be piled and the quantity of brick to be piled. There was, prior to the time in question, some brick in this room ■and at this place, forming a low pile of similar width. The brick kept in this room as well as the brick brought in upon the occasion in question was fire-brick, kept there and brought there for the purpose of lining the cupola. This- was relined •every six months, and there was during the six-months inter vals an occasional necessity for patching this brick lining. Relining was contemplated at some indefinite future time when the fire-brick was brought in and piled, on September 17 and 18, 1907; but no relining was then in progress. This cupola room, the cupola itself, and the men employed therein and thereabouts, were under the charge and superintendence of the foreman, Rarbier, whose duty it was to have the firebrick ready in the cupola room for use when needed. Barbier made a requisition for brick upon Kramer, the yard foreman, and the latter detailed two Greek workmen to bring the brick from the yard into the cupola room with wheelbarrows. The plaintiff did his wheelbarrow work removing the slag in the forenoon and worked at other cupola work in the afternoon. The Greeks did their wheelbarrow work bringing in brick in the afternoon and piled the brick or did yard work in the forenoon, and did no cupola work. This was because the room and its entrance were so narrow that two wheelbarrow crews could not work at the same time. The Greeks and the plaintiff, who was a Pole, spoke no common language and could communicate only by signs. In the forenoon of September 18th, while the Greeks were engaged in piling up the brick they had brought in and the plaintiff with one Pitulski was engaged in wheeling out slag, the brick pile in the cupola room, which had reached a height of from ten to twelve feet and of the length and width before stated, suddenly toppled over on-plaintiff. The jury found that the pile of brick was not reasonably safe and that the place was not reasonably safe; that the defendant ought in the exercise of ordinary care to have known of this, and was guilty of a want of ordinary care which was the proximate cause of plaintiff’s injuries. The court added two findings resting upon undisputed evidence, viz.: that the location of the brick pile was designated by defendant, and that the unsafe condition of the brick pile was caused by the height to which the brick were piled. The jury found for tbe plaintiff upon tbe questions of assumption of risk and contributory negligence.

It is argued that, a nonsuit should have been granted or a verdict for defendant directed as requested at tbe trial. We cannot upon tbe evidence relating to defendant’s liability, which is practically without dispute, so hold. The quantity of brick to be placed in this small room on the floor or foundation there existing and the place where it was piled and the manner of piling it were under the command and supervision of the foreman, Barbier. The pile fell from some cause. There is no evidence that the laying or placing of the brick in the pile by the Greeks was negligently or imperfectly done. In short, the finding of the court that the brick fell because it was piled too high rather negatives this, if a negative was needed for such a fact which does not,appear by evidence. The defendant provided these small and cramped quarters, fixed the quantity of brick to be piled therein, and designated the place where it should be piled. That quantity would not fit in that place unless it was piled to this dangerous height. The defendant’s foreman in charge of the placing of this brick passed through the cupola room and close by this pile of brick shortly before the injury, but claims his mind was engrossed with other matters and he did not notice the pile, and these duties all related to and were part and parcel of the master’s duty to use reasonable care to maintain a safe place. In this view the question whether or not the Greeks were fellow-servants of the plaintiff becomes immaterial. That the Greeks and the plaintiff were members of different gangs, each under a different foreman usually, and not engaged in exactly the same work, is only significant as bearing upon the contributory negligence of the plaintiff as showing that he himself took no active part in making the place unsafe. The recovery here may be based on the failure of the master to exercise reasonable care to keep the place reasonably safe. In Hulehan v. G. B., W. & St. P. R. Co. 68 Wis. 520, 32 N. W. 529, judgment for plaintiff was affirmed upon a special verdict finding: (1) Tbe injuries complained of were caused by tbe negligence of the defendant; (2) this negligence consisted in allowing sticks or blocks of wood to remain along tbe track; (3) these sticks or blocks of wood bad remained for several days prior to tbe injury; (5) tbe sticks or blocks of wood along tbe track were allowed to fall there by employees on tbe train in loading tbe tender; (6) it was tbe duty of defendant’s section foreman to remove tbe blocks and sticks. For other cases where tbe neglect of a fellow-servant co-operating with tbe failure of tbe master to furnish or maintain a safe place produced tbe injury, see Driscoll v. Allis-Chalmers Co. 144 Wis. 451, 129 N. W. 401; Mulcairns v. Janesville, 67 Wis. 24, 29 N. W. 565; Halwas v. American G. Co. 141 Wis. 127, 123 N. W. 789; Rankel v. Buckstaff-Edwards Co. 138 Wis. 442, 120 N. W. 269; Eingartner v. Ill. S. Co. 94 Wis. 70, 68 N. W. 664; Beach v. Bird & W. L. Co. 135 Wis. 550, 116 N. W. 245; Sparling v. U. S. S. Co. 136 Wis. 509, 117 N. W. 1055. Because repairs were contemplated consisting of relining tbe cupola, tbe duty of tbe master to keep tbe place safe did not cease where tbe injured servant was not himself at tbe time participating in tbe making of such repairs. “That at most would be one of tbe circumstances bearing on tbe question of what would constitute reasonable safety and on tbe measure of notice to an employee of tbe existence of some defects or perils.” Gorsegner v. Burnham, 142 Wis. 486, 125 N. W. 914. Tbe answers of tbe jury to tbe effect that tbe pile of brick was not reasonably safe and tbat tbe place where tbe plaintiff was injured was not reasonably safe, therefore have support in tbe evidence and cannot be disturbed. Tbat portion of tbe verdict acquitting tbe plaintiff of assumption of risk and contributory negligence also rests upon evidence and lack of evidence to tbe contrary and must be allowed to stand. We must bear in mind tbat bere tbe burden of proof is upon defendant. Erom tbe evidence submitted it does not follow as matter of law tbat tbe plaintiff knew or ought to bave known wbat quantity of brick was required to be piled bere or when tbe quota to be piled' would be filled and further piling cease. He probably did not know until tbe last wheelbarrowful was brought bow many brick were coming in, nor until tbe last course was laid bow high tbe pile would grow, nor tbe resistance of tbe floor. All of these were matters which tbe master, if be performed bis duty, might in tbe exercise of ordinary care be required to consider, while they might not be so apparent to tbe plaintiff, who was only charged with reasonable care for bis own safety and to notice obvious dangers. Whether this pile of brick on this floor would fall at ten, eleven, or twelve feet height was not so obvious to an untrained mind engrossed in other work as to require us to set aside or disregard tbe verdict of tbe jury acquitting tbe plaintiff of assumption of risk. It is impossible to say definitely at wbat time this pile became dangerous nor bow long tbe plaintiff worked in proximity it thereafter. We cannot disturb tbe verdict on this ground. We perceive no material or prejudicial error in tbe form of tbe questions submitted to tbe jury. Tbe finding tbat tbe place was not reasonably safe cannot lose its legal potency or effect because of tbe additional finding tbat tbe pile of brick was not reasonably safe, nor did tbe latter finding or tbe submission thereof, in our view, confuse tbe trial or issues or prejudicially affect tbe defendant. There are some verbal lapses in tbe instructions, but none of serious consequence and none sufficiently prejudicial to call for reversal. It would do no good to discuss them bere, because they do not indicate any legal heresy but merely a careless use of language.

Tbe damages found by tbe jury, $15,000, were reduced by tbe circuit judge to $11,000. We would bave been better satisfied with a greater reduction. But upon this matter tbe learned trial judge and tbe jury have exercised judgment and there is and always will be different opinions as to tbe proper amount of damages in sucb cases. Here tbe injuries are no doubt very severe. We bave in tbe instant case no unanimity as to tbe proper amount. We are unable to say that tbe judgment and experience of tbe learned trial court were so far out of tbe way as to call for further interference on tbe part of this court with tbe verdict.

By the Court. — Judgment affirmed.