Ernst v. Milwaukee Western Fuel Co.

ICeewiN, J. The contention of the appellant is that a safe place was not furnished him in which to work and that the defendant’s negligence consisted in such failure. On the part of the defendant it is insisted that the evidence of the plaintiff (the defendant having offered no evidence) was not sufficient to charge the defendant with negligence. The evidence shows that plaintiff was familiar with the premises in question, having worked about the shed in various capacities for several years prior to the accident; that he was engaged in the work of tearing down the shed at the time of the injury; that the work was commenced on the roof of the shed;, that a section of the roof would be taken down and then plaintiff and.others assisting him would go below and get the timbers out of the section, then go to the next section; that when the roof was being torn down boards would be thrown on the floor, and when cross timbers were pulled down uprights would fall upon the floor. The uprights were 8x8 and the cross pieces 6 x 12 and some 12 x 12. The claim of appellant is that the defendant was negligent [469] in putting the plaintiff to work on the floor which was rotten and defective, while on the part of the respondent it is contended' that the defect, if defect there was, .was occasioned by the wrecking and tearing down of the shed, hence the doctrine of safe place did not apply when the injured party as employee assisted in creating the defect, and further that there was a lack of evidence of defect sufficient to charge defendant with knowledge thereof. It is true the defect may have been created by the wrecking and tearing down of the shed. The evidence as to what caused the hole and whether it was caused by the rotten condition of the floor, and whether it existed before the injury, and if so, how long, or whether defendant ought to have known of the defect, is very unsatisfactory. Counsel for appellant invokes .the doctrine of res ipsa loquitur, but the court is of the opinion that the evidence is not sufficient to bring the case within that rule. The injury in this case occurred before the passage of ch. 485, Laws of 1911, so the instant case does not fall within the doctrine of Sparrow v. Menasha P. Co. 154 Wis. 459, 143 N. W. 317, and similar cases. In view of the well established doctrine that the ruling of the court below upon questions of fact will not be disturbed unless clearly wrong, the court is of opinion that the judgment below should be affirmed. By the Court. — The judgment is affirmed.