Hanson v. Superior Manufacturing Co.

136 Wis. 617 | Wis. | 1908

Winslow, C. J.

There was clearly no negligence in the manner of construction of the car. The dumping apparatus operated perfectly, and could not he said to be defective merely because the cross-arm descended to a point close to the planking. In the ordinary and nsnal operation of tide car the feet of the workmen would not be anywhere near the cross-arm, for the forward workman would be some distance ahead pulling on the rope and the car wmild stop itself when dumped, while the rear workman would be pushing on the top of the car from behind and his feet would inevitably be at some distance from the car; so it is difficult to see how an employer could reasonably apprehend that the foot of either workman could naturally get in such a position as to be caught under the cross-arm.

Rut if it should be held that there ought to be reasonable apprehension of such a contingency, this fact would not malee the apparatus defective,- but would only to tend to prove that there was a danger not readily observable of which an inexperienced employee should be warned in advance. As matter of fact, the dumping apparatus was in plain sight on the outside of the car, and the fact that the cross-arm descended very close to the planking was readily observable at every operation during the three hours the plaintiff had been at work. But it is argued that it cannot reasonably be held as matter of law that a new employee was bound to observe the danger during the three hours that plaintiff had worked on the car on the morning of the accident. .This argument would be of weight had this been the first experience which the plaintiff had with the cars and had he testified that he had not noticed the danger; but it appears by his own testimony that he has really foreclosed himself from making this claim. The plaintiff testified that he worked upon the cars in the same capacity for twenty-three hours about a year before his injury; that he observed at that time that the trip or arm descended to within about two inches or two and one-half or three inches from the plank, so that if a man’s foot got under the trip it would just about clear it; that the planking on the top of the tramway structure was not exactly level, but some planks might be three fourths of an inch higher than others; and that ■when the cross-arm caught his foot it came within three fourths of an inch to an inch from the track. Thus he made it certain that he had observed the mechanism, that he knew there was only a space of about two inches left when the cross-arm descended, and that he knew the planking was uneven so that in some places the space would be three fourths of an inch less. It follows necessarily that he knew that in some places the space left would be only somewhere about an inch and one-fourth or an inch and one-half. It goes without saying that if the foot were caught in that space at about the middle there would be danger of serious injury, though probably not as much injury as the plaintiff in fact received, and, as it is only necessary that the employee should know and appreciate that there is serious danger and not the precise extent of the danger, it must be held that under the plaintiff’s own testimony there was no duty to warn him of the possible danger when he was set at work.

It is true that the plaintiff testified that the car on which he worked was a new car, that the cross-arm descended somewhat lower than did the cross-arms of the cars on which he worked the year before, and that he supposed at the time that he was working on a car of the same pattern as those on which he previously worked. As it appears, however, that he was bound to anticipate the possibility of injury while working on the old cars, these facts become immaterial. The conclusion of the trial court seems to have been justified by the law and the facts.

By the Court. — Judgment affirmed.