154 Wis. 1 | Wis. | 1913
Tbe court directed a verdict for respondent. Tbis respondent bad a contract witb tbe Roberts & Scbaefer Company for tbe construction of a briquette plant. Tbis contract was completed and tbe contractor was cleaning up and removing its tools. Link, tbe superintendent of respondent, ordered Widen, bis foreman, to take bis men and move tbe tool box of tbe contractor some- distance where it could be loaded on a truck. Plaintiff and five other men who were carrying tbe box at tbe time of tbe accident bad been working for tbe contractor and were taken over by tbe respondent on tbe morning of tbe accident and working numbers were given to them by respondent’s foreman that morning, which indicated that they were in tbe pay of respondent. Tbe foreman of tbe contractor bad asked tbe respondent for men to help them move tbe box which belonged to tbe contractor. Widen bad orders from respondent’s manager to move tbe box, and tbe men were ordered by Widen to do so. There was no apparent intention of doing anything further for tbe contractor, and both tbe contractor and tbe respondent apparently desired that tbis box be removed. There is
I think under Shultz v. C., M. & St. P. R. Co. 40 Wis. 589, it was a question of fact for the jury whether the men engaged in moving the box were at that time acting for and in the service of the respondent. There is nothing in Johnson v. Ashland W. Co. 71 Wis. 553, 37 N. W. 823, in conflict with this. The plaintiff and his fellow-servants engaged in moving the box continued “subject to the selection, control, and dominion of the corporation and sustained no relation [to the contractor] under any contract of hire express or implied.” Wagner v. Plano Mfg. Co. 110 Wis. 48, 85 N. W. 643. There was no indirection about the thing. Whether the respondent undertook to help move this box as an accommodation to the contractor, or as part of its'duty under the contract, or pursuant to a desire to clean up its premises and get ready for operations, were questions of intention to be inferred from the instructions given, the temporary nature
But there is another ground upon which the judgment must be affirmed. Six men were carrying a box six feet long and four feet wide, two men in front, one on each side at the middle, and two at the end. That end of the box which extended in the direction in which it was carried I call the front, and facing in the same direction I speak of the right and left side. The plaintiff was carrying on the rear left-hand corner and one Bennett on the rear right-hand corner,, both facing in the direction in which the box was moved. Plaintiff testified:
“The first thing I knew there was the side where I was on got heavier and dropped down and I hollered out then, ‘What are you. doing ? Don’t let go of the boxand by that time in a second the box was down and the rest of them oh the other side had let it down too. I see them the time the box got down and the men stand to one side. I was just' simply squashed down. The heft of the box squashed me down. I couldn’t bend forward, the box was level with my head. It was level with the top of my head so I couldn’t bend over it. . . . They didn’t give any signal that they were going to let go of the box, nor that they were going to let loose of it. . . . The men in front stopped when they came to this narrow place, didn’t go in there. They stopped, couldn’t get any further then. Bennett on the right-hand side of me didn’t let go of the box before I did. His end of the box was higher than mine was at the time it was set down in front. I couldn’t see him at all. I don’t know how he did, but his corner was up high and mine was down. The first that I knew that they were going to let the box down was when I notice it get heavier. It just drawed me down, the heft of it. I wouldn’t dare to drop it. Well I had to hold on to it. The front end of the box was down at that time. The hind end of it drawed me down with it. . . . When the front end of the box was left down on the ground I still had hold of my end of it. Then it. went down. I went down with it. Then it got to the ground. I let it go. I suppose*5 Bennett let his down the same way. It took about a second’s time to let the box down and let it drop — I couldn’t hold it there. I was bound to go down with it and that is all the time it took.”
Bennett as a witness for plaintiff testified:
“When we came to the boiler and the blocking we couldn’t get through and the fellows on the front end of the box let it down. . They let it down, and when they let their end down of course we had to let ours down, and we looked at it and decided we couldn’t carry the box through there so we upended it to get it through. I felt the box go down. Johnson went down on his knees, whether the box pulled him down or whether he slipped and went down I couldn’t say — he went down when the box went down. J ohnson said nothing at that time. I do not know whether it was said by anybody that the box was going to be let down. . . . After we got to that point the men stopped. The men on the front laid their end of the box down. I and J ohnson on the rear laid our end down. ... We didn’t have any difficulty in lifting it. It didn’t seem to be too heavy. We handled it all right.”
Thomas, another man engaged in carrying the box, testified on the part of the plaintiff:
“When we came to this point where it was kind of tight we let the box down and began to cant it up the hill. We just said — we will let the box down again and cant it up the hill — we made the suggestion among ourselves. Johnson said, ‘Don’t let it down.’ At the time I felt it tipping I didn’t hear any warning. ... It was let down about as evenly as those men could let an object of that kind down.”
The fair inference from all this testimony on the part of the plaintiff is that these six men in carrying the box came to a narrow place through which they could not carry the box and the men in front let down their end of the box on the ground, not dropping it, but letting this end down, and that after it was thus let down the plaintiff and Bennett at the rear end let down that end, although the plaintiff, perhaps not knowing of the obstruction in front, exclaimed against
Omitting for the present any consideration of the affirmative testimony on the part of the defense that there was notice that the box was about to be let down in front, we have a case where the plaintiff strained his back while letting down this box in the manner described. Where was the negligence? There were three ways of letting down the box: (1) To call out and all at once let it drop. This might break the box or some of its contents if it had any. One does not need the wisdom of a sage to know that boxes are not ordinarily dropped in this way. (2) To let down one end first and have the two men in the middle move their hands toward the higher end or stoop with the descending box. This would involve some loss of effectiveness on either part. (3) In the way in which it was done.
I think every one ought to know that the end upheld was not as heavy after the opposite end rested on the ground as it was when the box was being carried in a horizontal position. The higher the upheld end the less weight until it reached the perpendicular, when the weight would be zero. Which was the wisest and best way? The most careful method ? Not every deviation from the wisest and most perfect deportment constitutes negligence. It would be impractical to apply the law of negligence to every slight departure from the best or wisest modes of action in the ordinary, sim-
When we take up the testimony for the defendant, we find that Westlund, one of the men who helped carry the box on the left side, testified: “We didn’t let it drop, we let it down evenly. I did not let it go before the rest of the men did. Anderson didn’t either. When it was let down it was set down at the same time after somebody said, ‘We can’t get through here, we are going to set it down.’ ”
Anderson, who carried the front left-hand corner, testified for respondent: “There was a place there that was kind of hard to get through. When the men got there they all set it down. Somebody hollered out, ‘Set it down.’ We all set it down together.”
The case might be affirmed on the ground that there was affirmative evidence that there was warning given, and the evidence on the part of the plaintiff, properly interpreted, merely went to the point that he did not hear the warning. But
By the Court. — The judgment is affirmed.