Sparling v. United States Sugar Co.

WiNSLow, O. J. It is claimed that- judgment should have been rendered for tbe defendant because tbe evidence-conclusively showed, first, that tbe plaintiff assumed tbe risk or was guilty of active contributory negligence; second, that there was no negligence by defendant, and that if there was-negligence in failing to put up a barrier it was tbe negligence of a fellow-servant. Upon tbe first proposition tbe claim is that tbe evidence513 conclusively showed that the plaintiff either knew of the excavation, or ought to have seen it had he been exercising ordinary care, and that he must have fallen into it about midway of its length while attempting to pass along the side of boiler No. 7, because Becker testifies that it was at this point he was helped out. We regard these propositions as untenable. The plaintiff testifies that he knew nothing of the excavation and there is really no testimony to the contrary, except that it appears that, upon his examination as an adverse witness before trial, he stated that he was in the boiler room and went through the passageway on the Saturday night before the accident. Upon the trial, however, he positively denied that he was in the boiler room on the night before the accident, and explained that if he said that he did not know or understand what he was saying. This presented merely a contradictory state of the evidence, and it was within the province of the jury to decide which story was correct. As to the claim that he ought to have seen the excavation had he been exercising due care, there was abundant evidence that the room was filled with steam, rendering vision very difficult, and in fact it could hardly have been otherwise when it is considered that the excavation was filled with very hot water and a large part of the floor also covered with it. Nor is it conclusively shown that he was attempting to pass along the side of the excavation when he fell in. Conceding that he was helped out nine or ten feet from where he claims to have fallen in, and that he gives no direct testimony showing just how he reached this position, it must be remembered that he was suddenly plunged in scalding water, and must without doubt have at once made desperate struggles to extricate himself. Probably few persons under such circumstances would be able to tell just what movements they made or where their struggles took them. We can see nothing in the fact that he was helped out at some distance from tiie place where he claims to have fallen in which con514 elusively establishes the falsity of his story, uor do we think that it renders the manner in which the accident happened a matter of mere conjecture. The claim that the evidence shows beyond dispute that sufficient barriers were put up by Anderson must also be rejected. It is true there was evidence by several witnesses that a small pipe or a plank or both reached' from boiler No. 7 to the pump. There was also evidence by several witnesses that there was no barrier there except the rope, and the rope had been placed there by the plaintiff himself, not as a barrier, but simply to steady the pump. The claim that the failure to place sufficient barriers before the excavation was the default of a fellow-servant is equally untenable. The breaking up of the floor to repair the sewer was not a mere detail of the common occupation committed by the master to his employees to be done by them in the ordinary prosecution of their work, but an unusual and extensive change in the boiler room itself, not incidental in its character, but closely akin to the original preparation of a place to work, which was committed to a skilled mechanic. Under familiar principles, the man who was prosecuting this repair was not a fellow-servant of the plaintiff, but was discharging the duty of the master to provide a safe place to work. Cadden v. Am. S. B. Co. 88 Wis. 409, 60 N. W. 800; Jarnek v. Manitowoc C. & D. Co. 97 Wis. 537, 73 N. W. 62; Grams v. C. Reiss C. Co. 125 Wis. 1, 102 N. W. 586. A claim of champerty is made. The evidence on the subject showed without dispute that the plaintiff contracted with his attorneys to pay them a sum equal to one half of the recovery for their services in prosecuting the action. There was no agneement that they should pay any of the costs. This does not constitute champerty. Dockery v. McLellan, 93 Wis. 381, 67 N. W. 733. A motion for new trial was made by the defendant upon [515] alleged newly discovered evidence. Tbe affidavits used upon tbe motion were those of Becker and Anderson, two witnesses wbo were fully examined on tbe trial, and these affidavits simply state a little more exactly tbe condition of tbe passageway between boilers 6 and 7 after tbe excavation was made, and bring out the fact that there was sufficient room to pass between boiler 7 and tbe excavation, a fact which was not inquired about directly when they testified on tbe trial. No sufficient reason is given wby tbis fact was not inquired about upon the trial, and, moreover, witness Becker did testify on tbe trial that be walked to tbe middle of tbe passageway on the side next to boiler 7, and then assisted tbe plaintiff out of tbe excavation and onto tbe floor, so tbat there must have been room to pass. Thus the new evidence became merely cumulative. As a matter of fact, it seems to have been admitted all through the case that there was sufficient room to pass at tbe point in question, so that the supposed new evidence would have made no change in the situation. By the Court. — Judgment affirmed.