Munia v. Chicago & Northwestern Railway Co.

164 Wis. 512 | Wis. | 1917

The following opinion was filed October 24, 1916:

ReewiN, J.

The facts as found by the trial judge are set out in the statement of the case and it is unnecessary to further repeat them in this opinion. The negligence alleged is the dropping or throwing of a timber, causing one end to fall on plaintiff’s foot. It is conceded in the brief of counsel for respondent that the facts are fully set forth in the opinion of the trial court. We think it clear upon the undisputed evidence that this case is ruled by Schmit v. Frederickson, 160 Wis. 426, 150 N. W. 426. In that case two men were handling the timber, one at each end, and one man dropped bis end, wbicb resulted in injury to plaintiff. In the instant case the timber was larger than that in the Schmit Case and two men were carrying each end when the men at the end opposite plaintiff dropped the timber and plaintiff was injured. In the instant case there is no evidence whatever that the men intentionally dropped or threw the timber, and all the evidence is consistent with the theory that it fell by accident from the hands of the parties carrying it without any negligence on their part. It is true in this case as in the Schmit Case plaintiff testified that the timber was thrown, but he admitted that he did not see it thrown, that he was not looking, hence all he knew about its being thrown was that it dropped or fell from the hands of the men at the opposite end.

Counsel for respondent relies upon Meo v. C. & N. W. R. Co. 138 Wis. 340, 120 N. W. 344. That case is clearly distinguishable from the instant case. In the Meo Case the rail was to be dropped upon signal given and the evidence was conflicting as to whether the rail was dropped before the customary signal had been given by the foreman. We think it clear that there was no evidence to support a verdict in favor of the plaintiff, therefore the judgment must be reversed.

By the Court. — The judgment of the circuit court is reversed, and the cause remanded with instructions to dismiss the action.

A motion for a rehearing was denied, with $10 costs, on January 16, 1917.