149 Wis. 240 | Wis. | 1912
The material contentions of the defendant are three in number, viz.: (1) that the hoister was a fellow-servant; (2) that the plaintiff was entirely outside of the line of his duty when he was injured; and (3) that he cannot recover in any event, because he has not returned or offered to return the amount received by him in settlement of his claim.
1. The first contention must fail. The evidence clearly shows that the plaintiff was a member of a carpenter’s repair gang which was making extensive repairs and changes in the structure. Such workmen are discharging the duty of the master to provide a safe place to work, and are not fellow-servants with ordinary employees who are simply employed to carry on the employer’s business in the structure. Sparling v. United States S. Co. 136 Wis. 509, 117 N. W. 1055, and cases there cited.
2. Whether at the time of the accident he had so far departed from his duty that the relation of master and servant did not exist for the time being is a more difficult question. It is established that no duty called him to the precise place where he was struck, and that he was in fact standing at the edge of the platform, some eight feet from his line of travel, gazing down at the operations on the vessel below, when the clam shell struck him. How long he had stood there is not determined by the jury, but the most of the witnesses who testified to seeing him there state that he stood there a minute or two; three minutes seems to be the longest time allowed by any witness; but they are all estimates, and we are all cognizant of the utter unreliability of any estimate of elapsed time under such circumstances. Probably the most that can he said is that it was somewhere between one minute and three minutes. Of course, the principle is well established that if a servant voluntarily and unnecessarily leaves his employment and assumes a position of peril merely for
But tbe law aims to be reasonable. It recognizes that it has to deal with imperfect human beings and not with faultless and unerring automatons, and that its rules should be shaped accordingly. It must recognize the fact that men employed in hard physical labor require and habitually take ■some brief respite at times during the work as opportunity •offers; and it must also recognize the fact that such a respite, if only of the ordinary and usual nature, cannot rightly be ■called a leaving of the employment. In the present case the plaintiff had just carried a plank, doubtless of considerable weight, to the top of the structure. In returning he stopped for a minute or' two at a convenient stopping place, stepped perhaps eight feet from his line of travel, and gazed at the •operations upon and about the vessel and the harbor below, which were doubtless interesting and attractive. We do not feel that we are obliged to hold or ought to hold as matter of law that this brief and very natural break in the plaintiff’s routine labor divested him of his character as an employee. We have been referred to no authorities which bear a very close analogy to the present case, and we are content to rest the ruling upon general principles.
This question being disposed of, no good reason appears ■why the jury were not amply justified in finding that there was want of ordinary care on the part of the defendant in starting the clam without warning, and that the plaintiff was no't guilty of contributory negligence.
3. Doubtless the rule is general that one who has received money or property in settlement of a disputed claim and given a release cannot maintain an action at law on the claim without rescinding the contract of settlement for some legal cause, and returning, or offering to return, the consideration
The difficulty in the application of the rule to the present case is that it cannot be said that the plaintiff ever knowingly nr in fact received any money or property. The evidence shows that at the time of the supposed settlement, after the terms were agreed to, a check for $280 was put upon the table by the defendant’s agent, payable to plaintiff’s order; that plaintiff’s wife signed the plaintiff’s name to the release and the plaintiff made his mark thereto, and the defendant’s agent left the room, leaving the check upon the table. The verdict ■of the jury establishes the fact that the plaintiff was incompetent at the time, and this finding is not seriously attacked. The check was cashed at the bank by plaintiff’s wife, who apparently signed her husband’s name on the back. The plaintiff never received any money, and testifies that he never had the check or any money therefrom in his possession, and never knew that his wife had the check or the money, or that she used it, until after the present action was commenced. The fact seems to be that his wife used the money for family expenses during plaintiff’s illness and incompetency without his knowledge or authority. It also appears that it has been utterly impossible for the plaintiff to earn or obtain from any •source enough money to make a tender of repayment.
Now if it be a fact, as the jury found, that the plaintiff was incompetent to act at the time the settlement was made and that the check was in fact turned over to his wife and the proceeds used by her without his knowledge or consent, it seems to us that it can hardly be said that he received any ■consideration for the release. It is rather the case of a vol
Some objections of a trifling nature are made to certain minor rulings on testimony, but they are not deemed of sufficient importance to justify treatment.
By the Court. — Judgment affirmed.
A motion for a rehearing was denied April 23, 1912.
