Kraczek v. Falk Co.

BaeNes, J. The third and fourth findings made by the jury are contrary to the direct and positive evidence of at least two witnesses and are not supported by any evidence whatever. It is true that the plaintiff, after testifying two or three times that he did not know whether the hook at the southwest corner of the cope was caught in the handle or whether it had been removed therefrom and caught on the flange of the cope after the crane started to move, did say on redirect examination that the hook was caught in the handle. On recross-examination he explained his apparently inconsistent statements by saying, that what he meant was that the hook was either hooked in the handle or caught under the flange, and that he did not know which. Clearly, this evidence raised no issue as against that of the chainman, George White, who had hold of the chain and who testified positively that the hook had been removed from the handle and tipped the cope over by catching on the flange. The craneman corroborated White’s evidence. The evidence is just as conclusive that ■'White was negligent in permitting his hook to come in contact with the flange. The only duty the chainman had was to follow the crane and hook the chains into objects1 that were to be moved, and unhook them when the movement was made. In reference to this matter the plaintiff testified: “The ehainman’s duties consist in making hitches for the crane; that is, in hitching the hooks of these four chains or any other chains that the crane carried, and unhitching. That is substantially all the chainman has to do; that is what 'is called in the foundry to follow the crane. And that was my work. ... I knew, and everybody else knew, the chains had got to be kept away or held away from the cope when the (cope [crane?] was moved. ... If the hooks were not held away from the cope they would come right down against it— [574] of their own weight because they hung in the middle over it. . . . In handling those heavy copes and flasks it was part of the duty of the chainmen, of whom I was one, when the hooks were unhooked from the flask, to hold them away, and keep them away until the crane lifted them above the thing that was to be lifted or had been lifted. That is one thing the chainmen are for. ... I knew enough to keep the chain away from anything. I knew, and any man who had experience in the handling of those molds knew, that it was the business and duty of the men that unhitched the chains to keep them away from the cope, if it was a cope, until the hoist had cleared the weight. ... It was the business of the chainman or anybody that was acting as chainman, in unhooking that cope or any similar weight that was lifted up, to hold the chains away until the crane would move clear. ... A man could not very well work there without knowing that. ... It was done every day a good many times.” George White, the chainman, whose chain caught in the flange of the cope and tipped it over, had been working in the foundry about five months before the accident happened, and testified substantially to the same effect although not with so much detail. No reason is given or shown-why he did not perform his duty and keep the hook away from the cope until it cleared the flange. There is no evidence in the case that either qualifies or contradicts that detailed. The chainman ■White was a fellow-servant of the plaintiff. That the cause of the overturning of the cope was the negligence of White would seem to be conclusively established. That such negligence was the proximate cause of the injury would also seem to follow as a necessary legal inference. But there is another conclusive reason why plaintiff cannot recover. He had worked in the foundry five or six months before the accident happened. The negligence which the jury found was imputable to the defendant was its failure to promulgate proper rules and regulations for the operation of the crane. The testimony to support this finding tended to show that it was the defendant’s duty to promulgate a rule requiring a signal to be given before the. crane was moved. [575] Tbe plaintiff, according to bis own evidence, knew that the crane was customarily moved without any signal. After testifying that he did not see or hear any one around the cope give a signal to the craneman on the morning of the accident, he said: “So far as I know, there never was any signal given to him at all. I did not know of any rules in that shop. It looked •strange that no signals were given. I thought so at the time. The reason I didn’t say something about it was because they been always doing that, and it would not, do me any good to make a complaint about it — one man. . . . They may have .given signals to the craneman, but not that I saw. So that all the time I was there I never saw a molder give a signal to the craneman. That is true. I didn’t hear a molder give a signal to the craneman about moving the crane. The molder did once in a while give a signal to the craneman — once in a .great while. I heard it, but I don’t know of any signals to be given. Once in a while I heard the molders signal to the craneman how to move. I don’t know how many times in the six months. Sometimes when I was there I did not hear ■a signal for a day or two. I don’t know how many times during the six months that I saw or heard a molder signal to the craneman what to do. Maybe a thousand times — for all my part 'it could be more, but not that I would know. Some days I seen them, and maybe I heard them, and some days I ■did not see any signals in there at all. Some days I worked all day and never heard or saw a molder give a signal to the •craneman.” It would appear from this testimony that the plaintiff 'knew that, customarily, signals were not given, and that, with knowledge of this fact, he worked for several months without any protest. If the hazard of moving the crane without signals was one which he could assume, it seems clear that he did assume it, and that such a hazard may be assumed hardly admits of doubt. Portance v. Lehigh Valley C. Co. 101 Wis. 574, 581, 77 N. W. 875; Bain v. N. P. R. Co. 120 Wis. 412, 422, 98 N. W. 241; Gierczak v. Northwestern F. Co., ante, p. 207, 125 N. W. 436. Counsel for the respondent seek to avoid such a conclusion [576] by asserting that tbe character of the work that was being done when the accident happened was different from that at which the plaintiff had been employed before, and that therefore it should not be held that he assumed the hazard to which he was subjected on this particular occasion. In reference to this matter the plaintiff gave the only testimony that was offered. He said: “Most of the time I had been there I had been a chainman following the crane. That was about six months. I had seen handled copes like these or parts of heavy glass hundreds of times during that six months, and have taken part in it as a chainman a good many times — almost daily. . . . I did not work around large molds like the one we are talk,'ing about. That is when I was working on little stuff. As much as I remember, that was the only time that I ever handled a big mold like that — a big cope — otherwise I always handled more small stuff. I never worked around a big cope before in that shop. Before that day the largest cope or flask that was lifted that I worked upon as a chainman was maybe three feet wide or four feet long or so. That was lifted by the crane. I was not there when there was a big cope lifted. I say I never was near a big cope like that. I was always in the place where it was poured off. "When I was acting as a chainman it was only for the purpose of hitching and unhitching chains. When I hitched or unhitched a chain on a flask or cope it was for the purpose of raising or lowering it. I have done that before the day I was hurt in that foundry. I had done it a great many times, hitched on the chains to copes or parts of flasks for the crane to lift. I hadn’t done chain work before with the molds. That was the first time I ever acted as a chainman on a mold.” The sum and substance of this testimony is that, while he had assisted in the operation of moving copes by means of a crane a great many times, he had never before assisted in moving a cope as large as the one in question. There is no intimation that the movement was conducted in any different manner, or that there was any more danger to be apprehended from moving the large cope than there would be in [577] moving a smaller one, except that if tbe large cope were tipped over its weight in falling would be greater than a smaller one and therefore it might produce a more serious injury. But plaintiff had assisted in handling copes three feet wide and four feet long, or such a matter, that were moved by the traveling cranes. It is manifest that the result of tipping such a cope or mold on an employee would be serious, and that the mere fact that the one which was being handled at the time of the accident was larger and heavier than those at which the plaintiff had usually worked did not materially change his situation. It is suggested that there was evidence tending to show that the crane was not only operated by an unskilled workman, but also by one whose sight was defective, and that we must assume, in support of the judgment, that the court found the defendant negligent in permitting one of-its cranes to be operated by such an employee, and also that such negligence was the proximate cause of the injury. Sec. 2858m, Stats. (Laws of 1907, ch. 346). .An examination of the record convinces us that the evidence fails to show that the defendant was negligent in this regard, and- we entertain no doubt that the reason the court did not submit a question to the jury covering such alleged negligence was because it was satisfied that there was no evidence in the case warranting such a submission. It is' unnecessary to consider the other errors assigned. The court should have granted the motion of the defendant to change the answer to certain questions in the special verdict and for judgment on the verdict as corrected. By the Court.- — -The judgment of the circuit court is reversed, and the cause is remanded with directions to dismiss the complaint. TimliN, J., took no part.