Cavanaugh v. Morton Salt Co.

| Wis. | Feb 18, 1913

BauNes, J.

Tbe appellant contends that tbe court erred in refusing to award judgment in its favor because it should be said as a matter of law that tbe plaintiff was guilty of contributory negligence. It is urged tbat tbe undisputed evidence shows contributory negligence in two particulars: First, in working in tbe bold of tbe vessel while tbe bucket was being hoisted and immediately underneath such bucket, and, second, in failing to either securely fasten tbe latch connected with tbe bail of tbe bucket or to see tbat it was securely fastened before plaintiff gave tbe signal for hoisting. It is further said tbat tbe evidence fails to show negligence on tbe part of tbe defendant.

Neither contention in reference to contributory negligence is tenable, and no useful purpose would be served by setting forth in detail tbe evidence which warranted tbe court in submitting tbe case to tbe jury on this question. In reference to tbe first point raised, it is sufficient to say tbat there was evidence tending to show tbat tbe plaintiff was doing bis work in tbe usual and customary manner, and as directed, and tbat tbe apparatus used in hoisting was in good condition. There was no claim tbat plaintiff knew of any similar accident bav- ■ ing happened before or tbat any sucb accident did happen at tbe dock in question in tbe process of unloading salt. Neither was there anything to show tbat plaintiff bad any reason to apprehend tbat tbe cable would break or tbat tbe latch which was designed to prevent tbe bucket from tipping would or could become unfastened while tbe bucket was being hoisted.

In reference to tbe second point urged, there is no evidence tending to show that tbe latch was not properly put in place before the hoisting signal was given. Appellant’s claim is that the latch could not become unfastened in the manner testified to, and the fact that it did become unloosed can only be accounted for on the theory that it was not properly put in place before the signal to hoist was given. But we are unable to say that elevating the bucket so rapidly that the hook to which the bail was attached was brought to a sudden stop with a hard bump when it reached the end of the boom or the carriage would not produce the precise result which followed in this case.

There was plenty of evidence to warrant the jury in. finding that the fellow-servant who operated the hoisting apparatus was negligent. The injury occurred after ch. 50, Laws of 1911 (secs. 2394 — 1 to 2394 — 31, Stats.), became effective. Defendant did not elect to come under the provisions of that law and it had at the time of the accident four employees engaged in common employment with the plaintiff. That act provides that in such a case it shall not be a defense in an action for personal injury that such injury was caused in whole or in part by the want of ordinary care on the part of a fellow-servant. Sec. 1 (sec. 2394 — 1, Stats.). We find no error in the record.

By the Court. — Judgment affirmed.