78 Wis. 22 | Wis. | 1890
The facts are substantially and briefly as follows :
The defendant company owned and operated in the city of Milwaukee, among other elevators, elevator B for loading, unloading, storing, and shipping grain. The elevators are subdivided into stalls or divisions for unloading and dumping grain from cars. In order to unload the grain from the cars into elevator B, a certain shaft running through the entire length of the elevator is set in motion by a steam-engine, which shaft is provided at each stall or division with a pulley, round which is a coil of heavy rope, attached to a sort of a bifurcated chain of which the ends are fastened to a wooden shovel or scraper. The operator of said shovel has to take hold of it by two ears in the back of it, and pull it into the car to be unloaded, and, by so pulling, the rope yields and unwinds from the pulley, and follows the operator into the car, and then he sticks the shovel into the grain, and, by giving a slight puli or jerk on the rope above the chain, it sets in motion a certain clutch and catch, which, causes the pulley on the shaft to pull the rope and rewind the same around the pulley by inverse motion, and thus moves the shovel with the grain out of the car into the dumping-bin. Any common laborer can operate such a shovel with ease if the machinery and gearing are in good and proper condition.
The 'plaintiff had been employed by the defendant to manage and work such a shovel in different stalls of said elevator, and had no trouble in operating the same; and afterwards, and on the day of the accident, he was employed to work in stall 3STo. 8, in working one of the two shovels in that stall. The other shovel was worked by one Peter Hyland, who had no trouble in working it. All the shovels in the elevator except the one on which the plaintiff was employed, and the machinery attached to the same, worked easily and properly. The plaintiff testified, in substance, that the
The said Peter Hyland, as a witness for the plaintiff, testified substantially as follows: He was working a shovel in the same stall. The shovel the plaintiff was working stopped and would not go. He told him to pull the rope, and he did so, and it stopped again, and he told him again to pull the rope, but it did not start, and then in a little while it started suddenly and tripped the plaintiff up. He could not say how long that shovel had been out of order, for he had not worked in that stall for two years. ' It did not work at this time. August Butzlof, another witness for the plaintiff, testified substantially as follows: He worked for the defendant in another elevator at the time, and before that he worked in the stall where the plaintiff was injured, three or four days. The shovel the plaintiff worked was then out of order. He did not know what was the matter with it. It stopped too often. Sometimes it worked well, and then it would stop. It was in that condition every time he worked in that stall. Sometimes, when it would
James S. Harvey, a witness for the defendant, and who had charge of the defendant’s elevators, testified substantially that said shovel and its machinery were in order, and that, if there was any hitch in starting the shovel, it must have been the stiffness of the oil in the machinery. When asked if he heard the testimony of the plaintiff’s witnesses as to the manner in which that shovel worked, he stated: “I don’t believe the testimony.” The other witnesses, employees of the defendant, testified substantially that the machinery was not out of order, and accounted for any failure to start readily by the stiffness of the oil. There was, however, no testimony to contradict in any other way the statements of the plaintiff’s witnesses as to the manner in which the shovel worked. This is substantially the evidence in the case.
The stiffness of the oil can scarcely account for the defective working of this shovel as testified to by the plaintiff’s witnesses, for that would have caused all the other shovels to have the same infirmity, which was not the case. If the testimony of the plaintiff’s witnesses is true,— and
We are not apprised of the ground upon which the circuit court made the direction, and we are unable to discover any sufficient grounds for it. The circuit court is warranted in directing a verdict for the defendant only when the evidence for the plaintiff, giving it the most favorable construction it will reasonably bear, including all reasonable inferences from it, is insufficient to justify a verdict in his
The testimony shows that the defect in the machinery, whatever it was, had existed for a sufficient length of time for the defendant to have known of it (Strahlendorf r. Rosenthal, 30 Wis. 675; Behm v. Armour, 58 Wis. 1); and the plaintiff should have been notified of it. The testimony shows for itself, and taking the case from the jury was obviously in violation of well-established principles and practice.
By the Court.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.