Baetz v. Valentine-Clark Co.

TimxiN, J. The foregoing outline may be supplemented by a few details from the undisputed evidence. The poles in question were the ordinary large telegraph poles, about thirty-five feet long and twelve to fourteen inches in diameter at the larger end. A pile of these lay across skids on the ground, [496] tbe pile and skids extending north and sontb and the length of the poles extending east and west. After plaintiff had taken the lower poles which were loose on the skids, it became necessary to tumble down the pile, which was fifteen or sixteen feet high. The superintendent ordered plaintiff to hook onto two poles, indicating them, which were in the pile, the ends ■ somewhat protruding and six feet above the ground. ■ The' plaintiff threw his chain around the butts indicated and hooked it so that there was about a foot between the evener and the poles. He had to stand on another projecting butt to reach up for the purpose of fastening his chain on the two poles in question. After having fastened it he descended and took hold of the reins. The team started up and pulled on the chain, but did not move the poles, which were fast in the pile. He pulled the horses back and tried again and failed. The superintendent told him to “gee” the team off to start the poles and when the poles broke away to swing the team back or “haw.” Plaintiff did so, the evener twitched around and flew up, and just then the pole struck him in the hip. This pull had loosened the poles, and other poles rolled down from the pile. It must be borne in mind that except for the swinging to the right and left, the “gee” and “haw” mentioned by the witness, he-was pulling'these poles in the direction of their length; and that the other poles rolled down the side of the pile onto the skids but not upon or toward the plaintiff, but over and upon the smaller end of the poles to which the horses were attached. One of the latter was a crooked pole, and plaintiff’s theory is that in the rolling down of the piled poles, which was the thing attempted tó be done, one or more struck the end of this crooked pole, swung the butt end to which the team was hitched around, striking the plaintiff and causing the damage. Counsel for respondent advances a somewhat different and quite plausible theory, but we are to take the evidence most favorable to the appellant with its favoring inferences,, be [497] cause the jury might have based their verdict upon appellant’s theory had they been permitted to decide the case. Between the end of the poles to which the whiffletrees and the evener were attached and the evener there was about eight inches of chain, not more than a foot, and of course if these poles were six feet from the ground as found by the jury, the evener, the whiffletrees, and traces were elevated considerably above the rumps of the horses while the team was pulling the poles out, and would remain so until the poles were pulled out so far that the weight pulled out,' with the weight of the whiffletrees and the pull, would overbalance the remainder of the poles, when the end to which the team was hitched would drop down and the other end stick up. The plaintiff while doing this “was sort of behind the nigh horse, facing toward the horses.” This means that he was behind and a little to the left side of the left horse, with his back toward the pile of poles or partly toward the pile of poles and almost under the upraised whiffletrees and evener and within a foot or two of the pile of poles. We need not say he was engaged in a hazardous piece of work and in a position of danger, for that is apparent. He had pulled these poles out eight or ten feet from the pile at the time he was struck. He had been using a longer chain that day, but it had broken before making the pull in question. The plaintiff had worked about eight or nine years teaming in the woods, drawing and skidding saw logs, had been handling horses about fifteen years, but had not theretofore handled cedar poles to any extent. Testimony of men experienced in breaking rollways and in breaking down piles of cedar poles was then offered, and it was shown that the last mentioned timbers were, especially when long and crooked, more apt to strike in falling and rebound and flop over than ordinary saw logs, because the latter are heavier, shorter, usually straight, and have their bark on. There is a greater spring and resiliency in peeled dry cedar poles than there is in other timbers, and the cedar poles in [498] falling will often strike one another and bound or swing around. The defendant’s superintendent was working with plaintiff in handling these poles, rolling them down from the pile and in pulling down the pile. It seems to us, within the rule of Rahles v. J. Thompson & Sons Mfg. Co. 137 Wis. 506, 118 N. W. 350, 119 N. W. 289; Yezick v. Chicago B. Co. 138 Wis. 342, 120 N. W. 247; Brotzki v. Wis. G. Co. 142 Wis. 380, 125 N. W. 916, and other like cases, this danger was not only necessarily inherent in the work in which the plaintiff was engaged, but was also so obvious and apparent that it was plain to any person of ordinary intelligence. To require one to say to an intelligent man engaged in trying to tumble down a pile of long cedar poles with a team hitched in the manner described that the falling poles may strike one of those to which his team is hitched and swing it around, seems like an idle ceremony of words. Long poles, crooked poles, and light poles fall, bound, and swing in a manner somewhat different from shorter, straighter, and heavier logs, but every workman and every, person who possesses a modicum of common sense knows that. The real cause of the unfortunate accident in question was using this extremely short chain to pull down the pile of poles by dislodging two poles up about six feet from the ground. This short chain compelled the plaintiff to either stand at one side of his team, where he could not handle them so well, or to stand where he did at the side of and so near to the poles to which his team was hitched that the falling pile of poles threw one or both of the poles to which his chain was fastened against him. This risk he intelligently and affirmatively assumed. The fall of the pile was the result he was trying to bring about and did bring about. He expected that the pile would fall, and he knew that no very strict rules would guide the poles in their descent. He also knew that the pile would collapse, if at all, before he had completely removed therefrom the two poles to which his horses were [499] hitched, and that it must fall over and upon or with these two poles. The notion that there is something unusual, extraordinary, or peculiar in the fall of a pile of cedar poles is well presented, but its effect is exaggerated. We cannot overlook the fact that any adult intelligent person knows that when he tumbles down a pile of any kind the units of which the pile is composed will fall in disorder and with great irregularity, varying in velocity, direction, 'and effect somewhat according to the height of the pile and the nature of such units, but in all cases where such units have considerable weight with danger to those standing near the falling pile. There is no duty to warn an intelligent adult employee of such obvious consequence of the very act which he is knowingly engaged in performing. The judgment of the circuit court must be affirmed. By the Court. — It is so ordered.