Halwas v. American Granite Co.

The following opinion was filed December 7, 1909:

Kerwin, J.

The evidence produced upon the trial tends to show that the plaintiff was in the employ of the defendant as a letterer and stonecutter in what was known as the Russell avenue shop, which is about 300 feet long north, and south and from seventy-five to eighty feet wide east and west. The floor had been leveled by taking about six inches of the ground from the south end to- the north with scrapers. The plaintiff at the time of the accident was' engaged in lettering various •sections of a large monument known as the Kosciusko monument. After completing the first die or section he proceeded to work upon the section which had been set up near the middle of the shop on the west side thereof by the craneman and his two helpers under the direction of a foreman of the shop about three days before the accident. The stone which fell and injured plaintiff had been placed upon blocks and was five feet ten inches wide, seven feet eight inches high, and twenty-two inches thick, and appeared'to stand plumb and solid. Large stones like the one in question were raised and moved by a traveling crane operated by a craneman, who was *132 assisted by two others called “lumpers.” The cutter or letterer gave directions when be wanted a stone placed in position, and if placed wrong the crane crew was signaled and the stones were changed according to his directions. "When the foreman was not present the cutter often directed what blocks should be used, and his directions were obeyed, and he sometimes helped in the placing of the blocks. The crane traveled upon bridgework on supports and was used for moving stones about the shop. It traveled north and south and the carriage-moved east and west. The ground where the monument stood was dark loam and soft, into which the front end of the east block supporting the monument had sunk from four to six inches. The place where the shop was located had been a cornfield, was without sod, and composed of sand and gravel at the south end. The duty of the crane crew was to set up monuments to be lettered. It consisted of the craneman, Tiett, and the “lumpers,” Yoss and Slack. Ilempe was superintendent, and it was his duty to see that the letterers were kept busy at cutting or lettering, and it was the aim, so far as possible, to have the job ready for the.letterers so they would lose no time between one job and another. It was- no- part of the plaintiff’s duty to set up the stones. ETo stone had been known to fall over before the one in question fell. Stones were usually lettered while lying flat on the ground; but the-one in question was standing for the reason that the letterer could not get around it as well if lying on the level. This stone was set up under the direction of the superintendent, Ilempe, who selected the place where it was to stand and directed the work while being set; plaintiff not being present and having nothing to do with setting it. After it was set Ilempe ordered plaintiff to go to work upon it. After it was set, Tiett, the craneman, spoke to Heinpe, superintendent, and told him that he thought it would be better to place the stone up against the column base and brace it from the top; but 'Ucmpe said it was all right, and no more was said about it. *133 The stone was set on the west side of the building at abont the ■center, the face to be lettered to the north. The plaintiff noticed nothing wrong with the setting of the stone. •

Several errors are assigned by appellant which will be treated in the order presented.

1. The admission of evidence of one Lohr, respecting the condition of the ground where the stone stood, is complained ■of for incompetency nnder the pleadings. It will be seen from the statement of facts that the negligence complained of was the negligent and careless manner in which the stone had been set np in the shop. The allegations would seem to be broad enough to admit evidence of the character of the ground, since the question is involved as to whether the stone was properly set up so as to be safe. Moreover, the complaint was afterwards amended so as to make it more specific in this regard. The case appears to have been tried upon the theory that the ground upon which the stone stood was unsuitable and unsafe. Complaint is also made because the court permitted the plaintiff to deny certain statements made by Lohr, on the ground that plaintiff could not impeach his own witness and deny a fact drawn from Lohr. The rule that a party cannot impeach his own witness does not go to the extent of ■shutting the mouth of the party against whom a hostile witness testifies; but he may show that the evidence of any witness is incorrect or false in a matter material to the issue. Richards v. State, 82 Wis. 172 , 51 N. W. 652 ; Smith v. Ehanert, 43 Wis. 181 ; Kohl v. Bradley, Clarke & Co. 130 Wis. 301 , 110 N. W. 265 . We find no error under this head.

2. The plaintiff was asked the following questions on cross-examination :

“Q. Can you think of anything now, from what you saw there, that ought to have been done about the placing of this stone that was not done ?

“Q. Do you know what is necessary to properly place or put up stones ?

*134 “Q. Erom what you noticed at that time about the placing and putting up of stones to be lettered, such as this stone was which you were asked to letter, did it need bracing ?”

Objection to the first question was sustained on the ground that it was improper in form and argumentative, and to the other two on the ground that they were not proper cross-exam■ination. Without entering into any discussion uxron these rulings, it is sufficient to say that we find no prejudicial error in the ruling below. Nor do we find any prejudicial error in the rulings sustaining objections to questions asked plaintiff’s witnesses Berlick and Voss on cross-examination. While the evidence of Berlick was, when first offered, excluded, it' was. afterwards, in substance, admitted. Moreover, the court intimated that such evidence might be proper in defense; but it was not offered by defendant in making its case. The questions put to Voss and ruled out could not have prejudiced the defendant. They inquired whether blocks put under stones-often shift and have to be replaced, and whether the craneman was not at times called to replace the stones. Appellant relies on Yezick v. Chicago B. Co. 138 Wis. 342 , 120 N. W. 247 ; but in that case it will be seen that the defect was open and obvious and tire court held that plaintiff assumed the risk. In the instant case the negligence complained of is failure to-furnish a safe place, and the defect was not open and obvious. As to the ruling complained of respecting the evidence of the witnesses Seitz and Rathman, no prejudicial error was committed. ?

3. Error is assigned in allowing an amendment to' the plaintiff’s complaint. It is at least very doubtful whether the amendment was necessary, but, if so, it was properly allowed. The original 'complaint alleged that the stone in question was-negligently erected upon the earthen floor of tire shop, and that the stone sunk the blocks upon which it rested into the earth so unevenly as to throw it out of plumb and cause it to' fall. The plaintiff moved to amend by inserting the words “unsafe- *135 and unsuitable,” so as to make it read “upon the unsafe and unsuitable earthen floor.” There "was no error in allowing the amendment. Miller v. Aram, 37 Wis. 142 ; Jarvis v. N. W. M. R. Asso. 102 Wis. 546 , 78 N. W. 1089 ; Post v. Camp bell, 110 Wis. 378 , 85 N. W. 1032 ; Robinson v. Eau Claire B. & S. Co. 110 Wis. 369 , 85 N. W. 983 .

4. Error is assigned in refusing to submit the following question to the jury:

“Were there other places in the defendant’s shop than the place where the stone in question was set, where the ground wras reasonably safe, considering the nature of the work, in hand, and where the employees of the defendant might hare banked the stone in question ?”

There was no error in refusing to submit this question. The issues in the case were fully covered by the verdict submitted. Even if submitted and answered in the affirmative it would not have strengthened the defendant’s case. The duty resting upon the defendant was to furnish a safe working place. The facts in the instant case do not bring it within the rule of the case cited by appellant. Van den Heuvel v. Nat F. Co. 84 Wis. 636 , 54 27. W. 1016. 27o duty rested upon the plaintiff here to' furnish a safe place. That duty was upon the defendant. Eingartner v. Ill. S. Co. 94 Wis. 70 , 68 N. W. 664 ; Howard v. Beldenville L. Co. 129 Wis. 98 , 108 N. W. 48 ; Parker v. Fairbanks-Morse Mfg. Co. 130 Wis. 525 , 110 27. W. 409.

5. It is further contended that there is no evidence proving or tending to prove that the defendant was guilty of any want of ordinary care which was the proximate cause of the plaintiff’s injury. This contention is based upon the theory that the plaintiff and the other employees who set up the stone were engaged in a common enterprise and were therefore fellow-servants. A great many decisions of this court are cited by appellant upon this proposition. We shall not attempt to *136 discuss the numerous cases referred to by appellant. They all go to the general proposition laid down in the books that:

“To constitute fellow-servants it is not necessary that the negligent workmen causing the injury and the one injured •should both be engaged in the same particular work. It is ¡sufficient if they are employed by the same master, under the same control, and performing the duties and services for the same general purpose.” MacCarthy v. Whitcomb, 110 Wis. 113 , 85 N. W. 707 .

The difficulty is not so much with the rule of law as with the application of it. There is quite a diversity of opinion ■among courts as to who constitute fellow-servants. In this ¡state the rule is well settled that who constitute fellow-servants does not depend upon the grade or rank of the servant whose negligence caused the injury, but upon the nature of the service being performed by the servants in which the negligence occurs. Wiskie v. Montello G. Co. 111 Wis. 443 , 87 N. W. 461 ; Rankel v. Buckcstaff-Edwards Co. 138 Wis. 442 , 120 D. W. 269. We have the well-recognized rule in this state that, after the safe place and safe appliances are furnished by the master, servants engaged in common pursuit under the same general control in carrying out details respecting the work of •operating the machinery may be fellow-servants. A familiar .illustration of this rule is found in Okonski v. Pennsylvania & O. F. Co. 114 Wis. 448 , 90 N. W. 429 , cited by appellant. To the same effect is Miller v. Centralia P. & W. P. Co. 134 Wis. 316 , 113 17. W. 954, where the.master had fully performed his duties in furnishing all appliances necessary for lighting the mill, and the negligence consisted in turning off She light and thereby rendering the place dark and unsafe. Such negligence was held that of a fellow-servant who was engaged in a customary operative detail, and therefore his negligence was not the negligence of the master in failing furmish a safe working place. Williams v. North Wis. L. Co. 124 Wis. 328 , 102 N. W. 589 . We think the present case is mot ruled by the authorities above cited and relied upon by ap *137 pellant. The plaintiff was not engaged in a common employment with the crane crew, nor was the work of setting large stones in position for the letterers to work upon a mere operative detail. When a master has performed his duty in furnishing a reasonably safe place, reasonably safe appliances, competent co-employees, and given proper warning of latent dangers* he may, doubtless, commit to the employees the details of the work; but he cannot escape the duty of furnishing a reasonably safe place and reasonably safe appliances by intrusting such duty to another. Williams v. North Wis. L. Co., supra. The doctrine that the duty rests on the master to furnish a reasonably safe working place, and that such duty cannot be delegated, has been so often declared, discussed, and applied by this court that nothing further need be said upon the general rule. Peschel v. C., M. & St. P. R. Co. 62 Wis. 338 . 21 N. W. 269 ; Jarnek v. Manitowoc C. & D. Co. 97 Wis. 537 , 73 N. W. 62 ; Howard v. Beldenville L. Co. 129 Wis. 98 , 108 N. W. 48 ; Parker v. Fairbanks-Morse Mfg. Co. 130 Wis. 525 , 110 N. W. 409 .

Upon the established facts we think it clear that the crane crew and the plaintiff were not fellow-servants. The crane crew represented the master in providing a reasonably safe working place for the cutters and letterers, of which the plaintiff was one. True, the crane crew was called upon by the letterers to place the stones for them; but the special duty of the crane crew was to place the stones in proper and safe position. While in some cases it appears that the letterers assisted in'setting the stones, it does not appear to have been any part of their duty, and in the instant case plaintiff took no part whatever in setting the stone which fell upon him causing the injury. The jury found upon sufficient evidence that the ground upon which the stone stood was not reasonably safe, nor the blocks upon which the stone rested of sufficient width and length to make them reasonably safe, considering the character of the ground and the work, and that the defendant *138 did not furnish the plaintiff with a reasonably safe place to work. It is therefore established that the defendant failed in its duty to furnish a reasonably safe working place. The instant case comes fairly within the doctrine of numerous cases in this court, and especially within the rule laid down in Cadden v. Am. S. B. Co. 88 Wis. 409 , 60 N. W. 800 ; Eingartner v. Ill. S. Co. 94 Wis. 70 , 68 N. W. 664 ; Jarnek v. Manitowoc C. & D. Co. 91 Wis. 537, 73 N. W. 62 ; and Lipshy v. C. Reiss C. Co. 136 Wis. 307 , 117 N. W. 803 .

In Cadden v. Am. S. B. Co., supra, the plaintiff was injured while working as a riveter by reason of the improper and dangerous manner in which a scaffold had been suspended. The scaffolding was supplied by the defendant and placed in position by men employed by defendant for that purpose, and the riveters took no part in constructing the scaffold, rendered no assistance, and gave no directions, except to indicate where it should be placed, and it was held that the scaffold builders were not fellow-servants with the plaintiff. At page 419 of 88 Wis. ( 60 N. W. 802 ) the court said:

“But, under the finding, it is clear that the plaintiff was not to have,.and did not have, anything to do with placing the scaffold, but that this duty was devolved on the defendant, and whether by custom or by agreement is not material. The fact that the plaintiff was to indicate where it was to be placed, or had a right to object that it was not properly suspended or adjusted, does not affect the result. He certainly had a right to call on the defendant to do' its duty, and to object that it had not been properly performed. Under the facts found, in view of the duty of the defendant to suspend and adjust the scaffold properly, it became, in our opinion, a place, as distinguished from a mere appliance, which the defendant was bound to furnish the plaintiff, though changing in location with the exigencies of the work; and it was its duty to see that it was in a reasonably safe and proper condition to enable the plaintiff to work thereon. The plaintiff did not take the risk of the carelessness of those who were selected by the defendant and undertook to do its duty, even though they *139 were the servante of the same master. This view of the case ■ is in accordance with former decisions of this court and a great preponderance of authority.”

In Eingartner v. Ill. S. Co. 94 Wis. 70 , 68 N. W. 664 , this, court held that a “carpenter gang,” whose duty it was to replace planks about a machine after their removal for the purpose of attaching new rolls, were not fellow-servants of one employed to oil the machinery, and the negligence of such carpenter gang in replacing the planks was the negligence of' the master. At page 79 of 94 Wis. ( 68 N. W. 667 ) this court said:

“When the master undertakes to furnish the servant a place, to work, with the preparation of which place the servant has nothing to ,do, then it is the master’s duty to furnish a reasonably safe place to work, and this duty cannot be delegated; and the servant who prepares such place for work is not, in the eye of the law, a fellow-servant with the other.”

It is further insisted by counsel for appellant that there is-no proof showing' what caused the stone to fall; but, as we have seen, it was the duty of the defendant to set the stone in a reasonably safe position, and there is ample evidence to support the finding that it did not do so. It appears that the block upon which the stone rested sunk several inches into the-ground, and, moreover, the craneman notified the foreman that the stone was not securely set up. The cause of the fall cannot, be said to be one of conjecture, even if this were sufficient to defeat the plaintiff; but, on the contrary, there is. ample evidence that the stone fell because not properly and safely put in position in view of the condition of the ground upon which it stood. Parker v. Fairbanks-Morse Mfg. Co. 136 Wis. 525 , 110 N. W. 409 ; Lipsky v. C. Reiss C. Co. 136 Wis. 307 , 117 N. W. 803 . Nor can it be said as matter of law that the plaintiff assumed the risk. The shop in which the accident occurred was a new shop, and it does not appear that the plaintiff was so familiar with the character of the soil constituting the floor that we can say as matter of law that he-knew the danger of setting the stone on the blocks in the man *140 ner in wbicb it was set. There was evidence that parts of the ■ground in tbe shop were soft, while other parts were much harder and substantial. The plaintiff was not charged with the duty of inspection, and it does not appear that the defective and unsafe condition of the ground was so obvious as to charge him with knowledge of the danger. Chopin v. Combined L. P. Co. 134 Wis. 35 , 114 N. W. 95 . The jury found that the plaintiff was not guilty of any want of ordinary care which proximately contributed to produce his injury, and such Ending is supported by the evidence.

The appellant further complains of the verdict for insufficiency, but we cannot see, under the rules laid down by this court, that it is subject to' the criticism. Deisenrieter v. Kraus-Merkel M. Co. 92 Wis. 164 , 66 N. W. 112 ; Howard v. Beldenville L. Co. 134 Wis. 644 , 114 N. W. 1114 ; Mauch v. Hartford, 112 Wis. 40 , 87 N. W. 816 .

Complaint is made that the findings of the jury leave in doubt what negligence the jury found to be the proximate ■cause of the injury. The defendant made no request to find as to the question, except as to question No. 2-|- heretofore considered. If counsel for defendant desired more specific findings upon proximate cause it should have ashed them. The verdict is set out in the statement of facts and is sufficient to support the judgment, especially in view of sec. 2858m, Stats. (Laws of 1907, ch. 346), and the repeated decisions of this court. Bates v. C., M. & St. P. R. Co. 140 Wis. 235 , 122 N. W. 745 . We regard further discussion under this head unnecessary.

We find no prejudicial error in the record.

By the Court. — The judgment of the court below is affirmed.

The following opinion was filed December 21, 1909:

Maeshaul, J.

The vital question is, Did appellant furnish respondent a reasonably safe place to work ? The jury *141 found, in the negative, I understand, because the ground selected was unsuitable. The master furnished that. There is no doubt, about it. The working place did not include the ground with the stone in position ready for the lettering. The effort to support the judgment on the theory that it did, and that the crane crew in placing the stone in position were not fellow-servants of respondent, because they, in so doing, .were performing the work of the master, was unnecessary and it seems illogical.

After correctly stating the rule that all servants of a common master, regardless of rank or grade, engaged — some in one department and some in another, some at one detail of the work and some at another — to accomplish a common object, ar.e fellow-servants, the application to the facts seems quite forced. Were not the crane crew and the respondent under the same general control, working to accomplish the general object of bringing new material onto the premises, manufacturing the same into finished products, and removing the same as shipments occurred ? Why was not the placing of a stone in position, lettering it, and bringing it upon the ground to be lettered, all details of the general work in which all were engaged ? Does this case not carry the doctrine of Cadden v. Am. S. B. Co. 88 Wis. 409 , 60 N. W. 800 , and similar cases, in view of Wiskie v. Montello G. Co. 111 Wis. 443 , 87 N. W. 461 , and similar cases, so far as to turn the fellow-servant law into much confusion ? It was as much the duty of appellant to use reasonable care to keep respondent’s working place reasonably safe as it was to furnish it. Therefore, according to the logic of the opinion, if the crane crew, or the crew bringing stone to the premises or taking away finished products, had so conducted themselves while respondent was doing his work as to render his working place unsafe, such conduct would have been that of the master.

The real cause of the mischief was the negligence, if there were any as the jury found, in furnishing the unsuitable ground upon which to do> the work. Such being the case, why *142 •endeavor to support the judgment against the claim of appellant that the crane crew were fellow-servants of respondent in the work of preparing the stone, by claiming that they were not because they were merely preparing the working place ? If that be so, how could we avoid holding, if the stone had fallen from the trucks while being brought to the place where ■the cranemen found it, and injured respondent, that such truck crew were not fellow-servants ?

It seems the case should have been grounded, as it was wholly by the verdict, on the proof that, the working place, referring to the ground, was not reasonably safe for the operation respondent was engaged in.