Strehlau v. John Schroeder Lumber Co.

Dodge, J. The evidence, in which there is very little dispute, is conclusive against either negligence or any failure of duty on the part of the defendant. The situation is the usual ■one of an entirely safe place — that is, a proper site — being furnished to a force of employees upon which they are to construct a building with materials in which no defect or unfitness is suggested. Of course, as the work upon which they are mutually engaged progresses, perils arise. The moment any timber is elevated from the ground there is a degree of unsafety, for it may drop or swing to the injury of some of the men. But the duty of the master to supply a reasonably safe place to work has no application to the dangers thus created, for the unsafety of the place arises not from the acts ■of the master, but from those of the very force of co-employees. The situation presented in this case, where several timbers had been erected and a floor commenced to be laid at ■some elevation, differs not at all in principle from that above suggested when the first timber is raised from the ground. The rule of nonliability of the master for perils thus created in the progress of construction or repair of buildings is established by multitudinous authority. Porter v. Silver Creek & M. C. Co. 84 Wis. 418, 54 N. W. 1019; Larsson v. McClure, 95 Wis. 533, 70 N. W. 662; Mielke v. C. & N. W. R. Co. 103 Wis. 1, 79 N. W. 22; Liermann v. Milwaukee D. D. Co. 110 Wis. 599, 86 N. W. 182; Kath v. Wis. Cent. R. Co. 121 Wis. 503, 99 N. W. 217; Williams v. North Wis. L. Co. 124 Wis. 328, 102 N. W. 589; Walaszewski v. Schoknecht, 127 Wis. 376, 106 N. W. 1070; Hoveland v. Nat. B. Works, 134 Wis. 342, 114 N. W. 795. In the light of these [218] authorities it is entirely obvious that the conditions which, caused the place where plaintiff worked to be unsafe were not provided by the master, but had been created by the very force of men of which plaintiff was one, for they were all engaged in the common work of moving these timbers from their place in the yard to the places where they were to be framed into the building and in framing them. A somewhat different phase of negligence is suggested by the complaint and urged by appellant, namely, that the placing of the block or plank near enough to the edge of the floor and failure to fasten it by nails, so that it might be expected to be precipitated over the edge, was negligence on the part of defendant. This contention is likewise negatived by the undisputed evidence, which shows that all of said acts were done by co-employees. The fall of the timber, it is argued, was of itself prima facie evidence of an unsafe situation or condition. This, however, overlooks the fact that its precipitation may have been caused as well by negligence of those who were handling the timbers as by reason of a negligently unsafe condition; hence the rule res ipsa loquitur is equally effective to establish that the fall of the timber may have been due to negligence of co-employees for which the master would not be liable. Musbach v. Wis. C. Co. 108 Wis. 57, 84 N. W. 36. Further than this, however, the evidence is entirely conclusive, as already stated, that, whatever the condition was, it was created by acts of co-employees in the process and prosecution of the construction of the mill. For these reasons the trial court properly ordered judgment of nonsuit.' By the Court. — Judgment affirmed.