Van den Heuvel v. National Furnace Co.

Master and servant: Injury through negligence of fellow-servant: Selection of appliances. 1. The master is not liable for an injury to a servant caused by the breaking of a plank selected by a fellow-servant to be used as a bridge over which to carry charcoal from a car to a shed, when the master had furnished a pile of planks of different thicknesses suitable for various uses, some of which were sufficiently strong for this purpose, and it was a part of the regular duty of the servants to select the planks to be used. 2. The servant who selected the plank in question and put it in place was a fellow-servant of the one injured, though not at work at the time of the accident.

APPEAL from the Circuit Court for Brown County. Action to recover damages for personal injuries. The defendant is a corporation operating a large iron-smelting furnace at De Pere, Wis. On the 4th of May, 1891, plaintiff was a laborer in defendant’s employ in and about the furnace and yard, and had been such for three years. Defendant uses a large amount of charcoal in its business, which is brought into its yard in railroad cars, and unloaded by its employees into sheds by the side of the railroad track. This unloading process is called “ stocking.”' The car is placed so that its door is opposite a corresponding door or opening in the stock shed. Two planks are placed from the door of the car to the opening in the shed (a distance of about ten feet), and the laborers carry the charcoal in a large box with handles from the car to the shed, each walking upon one of the planks. The plaintiff had worked at “ stocking ” a number of times during his service. On the evening of May 4, 1891, he was working on the night shift, and came on duty about 6 o’clock p. ii. He worked with another laborer “stocking,” — carrying one end of the box, — until about half past. 10 o’clock, when the plank on which he was walking broke, and he was thrown to the ground, breaking his arm. The plank which broke was a three-inch pine plank, apparently sound. The defendant had at the time a considerable pile of planks of different sizes and thicknesses near the stock shed, which were used as occasion required for repairing and other necessary uses in and about the yard. No special planks were designated for use in making these temporary bridges for “stocking” coal, but when the workmen desired a plank for this purpose they went and selected one from the pile, either of their own motion or by direction of the superintendent of the yard.' The defendant had not worked at “stocking” for some time previous to the night of the accident. The plank which broke had been in use for. this purpose for a day or so before it broke, and was selected from the pile by a fellow-workman for the purpose. At the close of the evidence a verdict for the defendant was directed, and from judgment theréon plaintiff appeals. They cited. Garter v. Oliver Oil Go. 34 S. C. 211, 21 Am. - St. Rep. 815; Brown v. Oilohrist, 80 Mich. 56, 20 Am. St. Rep. 496; Clark v. Soule, 131 Mass. 380; Arkerson v. Dennison, 111 id. 401; Lund v. Hersey L. Co. 41 Fed. Rep. 202; Union P. P. Co. v. Broderick, 30 Neb. 135; Fraser v. Bed B. L. Co. 45 Minn. 235; Moynihan v. Hills Co. 146 Mass. 586, 4 Am. St. Rep. 348; Johnson v. Spear, 16 Mich. 139, 15 Am. St. Rep. 298. They cited Peschel v. C., M. tfc St. P. B. Co. 62 Wis. 338'; Fraser v. Bed Biver L. Co. 45 Minn. 235; Butler v. Townsend, 126 N. Y. 105;. Hefferen v. N. P. B. Co. 45 Minn. 411; Bawley v. Oolliau, 90 Mich. 31; Thyng v. Fitchburg R. Go. 156 Mass. 13; Kehoe v. Allen, 92 Mich. 464; Ling v. St. P., M. & M. It. Go. 52 N. W. Rep. (Minn.), 318; Hogan v. Smith, 125 N. Y. 774; Ballon v. O. & H. W. B. Go. 54 Wis. 268; Bohn v. G., B. I. & P. B. Go. 106 Mo. 429; Poffer v. Gutter, 83 Wis. 281; Scott v. Oregon B. & K. Go. 14 Oreg. 211; Gregan v.“Ma/rston, 126 N. Y. 568; McKinnon v. Horcross, 148 Mass. 533; Daley v. B. c& A. B. Go. 147 id. 101; Smith v. G, M. do St. P. B. Go. 42 Wis. 520; Steffen v. O. dk H. W. B. Go. 46 id. 265; Goltz v. M., L. S. <& W. B. Go. 76 id. 136.