Reinke v. Bentley

Cassoday, J. The accident happened about 5 o’clock in the afternoon. The side track upon which the cars were moving was three or four feet from the building upon which the appellant’s men were working, and the main track was fifteen or twenty feet from the building. 1. The appellant’s foreman, Herman, was sworn as a witness in behalf of the plaintiff. Error is assigned because the court refused to allow him, on cross-examination by the appellant’s counsel, to testify as to whether Mr. Bentley said to him that when he had finished he should get the derrick man to take that derrick down. Such testimony was properly excluded as not being cross-examination. Besides, it is of no consequence, since Mr. Bentley testified as to just what he did tell him, and that evidence is undisputed. 2. Error is assigned because the court charged the jury to the effect that, in considering what would compensate the plaintiff for his injury, they might consider the. injury to his feelings, the physical pain and suffering that he had endured, and also the mental suffering by reason of the injury that he received and the anxiety of mind that it might have cost him. The injuries were a fracture and dislocation of the spinal column, and were permanent. The charge is supported by numerous decisions of this court. Craker v. C. & N. W. R. Co. 36 Wis. 657; Brown v. C., M. & St. P. R. Co. 54 Wis. 342; Wightman v. C. & N. W. R. Co. 73 Wis. 169; Grace v. Dempsey, 75 Wis. 313. 3. The jury were certainly justified in finding that Herman, and those who assisted him in placing the rope across the track, were guilty of negligence which caused the injury, and that the plaintiff was free from any contributory negligence. So much is, in effect, conceded. But error is assigned because the court directed a finding by the jury to [460] the effect-that, in putting the rope across the track, Herman was acting within the scope of his employment for Mr. Bentley. That he was at the time acting as foreman, and that he, with the men under his charge, put the rope across the track to aid in taking down the derrick, is conceded. The appellant testified to the effect that Herman had worked for him seven or eight weeks before the accident; that he hired him particularly to take charge of this elevator work; that he was to see to the elevator building, to keep track of labor employed on that building, to see that the work was kept in line, and square, and in its right place; that this particular derrick was operated by steam; that Herman had general charge of the work, in the absence of Mr. Bentley; that the derricks were maintained in accordance with Mr. Bentley's instructions and direction; that Herman had the particular charge of moving these derricks; that he (Bentley) told Herman that whenever he changed derricks, or wanted any assistance in putting one up or taking it down, to be sure and call on Druss, the specialist on derricks, for assistance. The mere fact that Herman so far disregarded such instruction as to stretch the rope over the track, as a means employed by him in taking down the derrick, without the presence of Druss, did not prevent the act of so stretching the rope being within the scope of his employment. Spaulding v. C. & N. W. R. Co. 33 Wis. 582; Craker v. C. & N. W. R. Co. 36 Wis. 657; Fick v. C. & N. W. R. Co. 68 Wis. 469; Rogahn v. Moore M. & F. Co. 79 Wis. 573. Thus, in an English case, a servant employed by the defendants to drive their omnibus, contrary to their express directions drew his omnibus across the road in front of a rival omnibus of the plaintiff, to obstruct the passage of the latter, and in so doing ran against and injured the plaintiff’s omnibus; and it was held that the instructions given by the defendants to the driver, not to obstruct other omnibuses, were immaterial as to the question of the master’s liability. Lim [461] pus v. London G. O. Co. 32 Law J. Exch. 34; S. C. 1 Hurl. & C. 526. See, also, Whatman v. Pearson, L. R. 3 C. P. 422; Burns v. Poulsom, L. R. 8 C. P. 563; Cosgrove v. Ogden, 49 N. Y. 255; Mound City P. & C. Co. v. Conlon, 92 Mo. 221. Upon the undisputed evidence, we are constrained to hold that, in stretching the rope across the track, Herman acted within the scope of his employment. ¥e find no error in the record. By the Oourt.— The judgment of the superior court of Milwaukee county is affirmed.