Prybilski v. Northwestern Coal Railway Co.

WiNslow, J. It is claimed that the evidence tended to show negligence on the part of the defendant in two particulars, namely: (1) In failing to furnish a safe place to work, 'by not providing a covering over the railroad tracks and beneath the course of the coal buckets, which would prevent coal from falling upon employees who were working below; :and (2) in using a defective bucket, which would not automatically right itself when empty. 1. As to the first ground of negligence, there is an entire absence of evidence to show that such a covering was practicable or in use upon similar docks at the time of the accident. On the other hand, the testimony was undisputed that such a covering was never in use upon similar docks •either at Superior or at other lake ports. The duty of the defendant was to furnish a place' as safe and free from danger .as other persons of ordinary care, prudence, and caution, •engaged in like business and in like circumstances, ordinarily furnish. Guinard v. Knapp-Stout & Co. Company, 95 Wis. 482. The evidence shows that this was done in the present case. 2. As to the alleged defective bucket, there is no evidence tending to show that it was defective, save the fact that it failed to right itself and latch automatically on the two trips just prior to the trip in question. This was within fifteen minutes prior to the accident, and on both occasions the hoister succeeded in righting it by the use of his levers. He tried to so right it on the third trip, but, failing in his first endeavor, concluded it would clear the coal, and brought it back unlatched. After this the bucket latched itself automatically on every trip for an hour and a half. If this in fact shows any defect in the bucket at all, it affirmatively shows that neither the defendant nor its officers had any knowledge of such defect, nor any opportunity to know of it. • The time was manifestly too short to charge them with [417] ■constructive notice. If there was negligence at all, it was on the part of the hoister, who was a fellow-servant of the plaintiff. By the Court.— Judgment affirmed.