Zoesch v. Flambeau Paper Co.

Winslow, O. J. Four general contentions are made in support of the judgment of nonsuit, viz.: (1) That it appears — 275 — tbat tbe respondent furnished a reasonably safe place and appliances; (2) that the deceased was not within the line of his employment, or was disobeying orders, when the accident happened; (8) that the manner in which the accident happened is mere matter of conjecture; and (4) that, if this latter proposition be not correct, then the accident was caused by the negligence of the deceased himself. 1. We cannot regard the first proposition as sound. Steam in large quantities and under pressure is well known to be a highly dangerous agent to handle and control. To discharge a large boiler full of boiling water and steam at a pressure of fifty poimds to the inch (as the testimony tended to show was the case here) is manifestly a task requiring not only fit and suitable appliances but careful management. There is in the case testimony by two witnesses, familiar with the appliances in use in other mills for this purpose, to the effect that the ordinary and usual way to arrange the blow-off pipe is to carry the same outside of the building, so that it will blow off in the open air, or to extend it into another pipe in connection with other boilers, or to extend it into a closed sewer or sewer basin, and that it is not usual to have the discharge pipe blow off inside the boiler room, on account of the danger to the man at the valve and the danger of fracturing the boiler. There was certainly ample evidence to carry to the jury the question whether the defendant was negligent in failing to provide for its employees a safe place and appliances for the performance of this operation. 2. Whether there was evidence from which the jury could find that the deceased was within the line of his duty in attempting to assist in the operation of blowing off the .boiler is a question of greater difficulty. It is admitted that the night shift of firemen on Saturday night remain on duty until Sunday noon, and that it is a part of their duty on Sunday morning to prepare two boilers for discharge and cleaning, and to discharge them if the contents are sufficiently cooled before their time is up. Meyers, the head fireman, was off — 276 — duty on the night in question, and Boulton, the superintendent, testifies that he told the deceased to go to worlc at midnight and help' on the fire. When asked if he (Boulton) told the deceased to quit at 7 o’clock in the morning he answered, “Seven o’clock in the morning, supposed his time was up.” But this answer was stricken out by the court and he was again asked if he told him to quit at 7 o’clock, to which he answered, “Told him I only wanted him for the night.” This forms the only direct evidence of the terms of his employment. Boulton further testifies, however, that Zoesch went home to breakfast at 7 and returned at 8; that he saw him when he returned and immediately set him at work at other tasks. Erom this testimony it is claimed that it is clearly shown that Zoesch was not employed as a fireman or fireman’s helper after 7 o’clock a. m. and was a mere volunteer in the boiler room when the accident happened. But it is very significant that Boulton declined to testify that he told the deceased to quit at 7 a. m., hut would only say that he told him “he only wanted him for the night.” Row Zoesch was admittedly put to work to take the place of a man on the night shift who was off for that night. The duties of the night shift continued on Sunday until noon, and Zoesch undoubtedly knew this fact. Under such circumstances, what is the fair inference to he drawn from the words testified to by Boulton ? Are they so certain in their meaning that but one conclusion could be drawn, namely, that Zoesch was to quit at 7 o’clock, or might he fairly and honestly construe them as meaning that he was put upon the night shift, and that employment for the night meant employment to perform the duties of a member of the night shift ? We confess that the latter inference seems to us fairly capable of being drawn from the words used under the circumstances surrounding the parties. There is direct evidence tending to show that Zoesch so understood, for Belter testified that Zoesch told him in the morning, after he came — 277 — back from breakfast, that he was there in Meyers3 place. Even taking Bonlton’s story of the transaction between him and Zoesch after breakfast to be true, it seems clear that they both understood that Zoesch’s time of service was not over at 7 o’clock; for Boulton, without any word of surprise at his return and without any new contract of employment, immediately set him at work, apparently as if the former employment still persisted until noon. This conversation between Boulton and Zoesch in the boiler room at 8 o’clock a. m., at which Boulton claims that he set Zoesch at other work, is said to be undisputed, and is relied on by respondent as conclusively showing that he was out of the line of his employment when later he was assisting in the discharge of the boiler. 'We think it cannot have any such conclusive effect, for two reasons: First, Boulton testified that Belter was standing but a few feet distant when this conversation took place, while Belter entirely denies hearing any such conversation, and also denies that Boulton was in the boiler room to his knowledge at any time during the morning, so the question whether any such conversation ever took place is in dispute under the evidence; second, there is nothing to show that Zoesch did not do the jobs referred to by Boulton and finish them before going to work at the boilers. About an hour’s time seems to have intervened, according to the testimony, before operations were begun on the boilers, and, if Zoesch was justified in concluding that his employment as fireman did not close until noon, no reason is perceived why he might not rightly return to the ordinary duty of a fireman after performing the special jobs at which Boulton set him. But it is further insisted that Zoesch was employed simply as an assistant fireman or helper and became a subordinate of Belter, the second fireman, and that in meddling with the valve at all he disobeyed the orders of his superior. The evidence is much confused as to the duties and authority of the head fireman as well as to the place which Zoesch really occu — 278 — pied. Boulton, testified that the firemen ranked about the same; that the head fireman got a little more pay; “that he kind of looks after things and tells them to put more fuel in;” that with regard to cleaning the boilers “he might tell them to turn the water on the hose, to start the pumps, or something like that; but, as I said before, they all worlc together.” Thus it appears that the authority of the head fireman is very vague and illy defined, if it exists. at all. There is no testimony that Belter was made head fireman for the night by any special order or that there was any custom to that effect. Zoesch seems to have considered himself head fireman because Meyers was off duty, and his claim does not seem to have been disputed by Belter; but when it came to cleaning the boiler, Belter, who had experience, assumed to give directions, which Zoesch received without dissent or protest. Under this contradictory state of the evidence we cannot say that the question was not fairly for the jury. Of course, if it appeared that Zoesch was in fact a subordinate and knew or ought to have known that he was subject to the orders of Belter, and that he disobeyed such orders, and as a result of such disobedience suffered his injuries and death, there could be no recovery; but we are unable to say that these facts appeared by undisputed evidence or by such overwhelming-preponderance thereof as to justify taking the question from the jury. 3. The contention that the question as to how the accident happened can only be a matter of conjecture is not tenable. It seems to be certain that for some reason Zoesch went down to the valve and turned it on, so that a sudden -and overwhelming rush of boiling water and steam then resulted, from which he could not escape. The evidence of Russell tends to show that when Zoesch was taken out of doors he at once said, “The thing stopped running, and I opened it up a little bit, and the whole end blowed out on me.” This was unquestionably part of the res gestee, and is affirmative evidence of the — 279 — facts stated. Christianson v. Pioneer F. Co. 92 Wis. 649, 66 N. W. 699; Huffer v. Nat. D. Co. 119 Wis. 417, 96 N. W. 809. Tbe valve was afterwards found to be turned on in full. So there was in tbe case proof tbat tbe flow stopped for some reason, and tbat in opening tbe valve wider tbe obstruct tion was suddenly removed and tbe accident happened. Tbis was not an incredible state of facts, as there was evidence tbat tbe water in tbe boiler was river water and liable to form large amounts of scale which might obstruct tbe flow; and again, Zoesch bad received no instruction or command from Belter as to what to do in case tbe flow stopped, so in tbis case there would be no disobedience of orders, even if Belter was tbe superior. A finding tbat tbe accident happened in tbis way would be a finding based upon evidence and not upon conjecture. 4. Little need be said upon tbe contention tbat Zoesch was guilty of contributory negligence as a matter of law. Zoesch was a common laborer, without experience in performing tbis dangerous work, and be bad received no warning of tbe danger nor instruction save such as Belter may have given him. It was admittedly tbe duty of tbe night shift, working together, to discharge tbe boiler. If be was reasonably justified in concluding that be was employed as a member of the night shift until noon, be was in tbe line of bis duty in attempting to discharge tbe boiler. If be was in fact Belter’s subordinate and knew or ought to have known tbat fact, and was injured because be disobeyed Belter’s instructions, be would be guilty of contributory negligence; but if be disobeyed no instructions, or was justified in believing tbat be was Belter’s superior, then the court could not say as matter of law tbat be was guilty of contributory negligence. TJnder tbe evidence tbe question was for tbe jury. 5. Tbe evidence of Boulton, tbe superintendent of tbe mill, was taken under sec. 4096, Stats. (1898), before trial, and a part of it was introduced by the plaintiff against ob — 280 — jection on tbe first day of tbe trial. On tbe second day Boul-ton was present in court, and, on attention being called to that fact, tbe court struct out that part of tbe deposition already introduced and Boulton was put upon tbe stand by tbe plaintiff and testified at length. Tbe plaintiff now complains of tbe ruling striking out tbe deposition. There are two sufficient answers to this objection: (1) Boulton was not an officer of the corporation, but a mere employee; hence under tbe rule announced in Hughes v. C., St. P., M. & O. R. Co. 122 Wis. 258, 99 N. W. 897, and Johnson v. St. P. & W. C. Co. 126 Wis. 492, 105 N. W. 1048, tbe deposition was not admissible when tbe witness was present. (2) Tbe evidence of Boulton given on tbe trial substantially covered tbe evidence given by him in bis deposition; hence no prejudicial result could follow from striking out tbe deposition. Some minor rulings on evidence are complained of, but we do not deem it necessary to discuss them. By the Court. — Judgment reversed, and action remanded for a new trial.