Van Dinter v. Worden-Allen Co.

YiNjk, J. The evidence now presented is substantially the same as that before us upon the former appeal. See Van Dinter v. Worden-Allen Co. 153 Wis. 533, 138 N. W. 1016, 142 N. W. 122. That being so, the qxiestions then de [582] cided are tbe law of tbe case now. Horn v. La Crosse B. Co. 131 Wis. 384, 111 N. W. 522, and cases cited; Schenck v. Sterling E. & C. Co. 155 Wis. 219, 144 N. W. 290, and cases cited. It was held upon tbe first appeal that tbe questions of plaintiff’s -contributory .negligence and assumption of risk 'and of tbe proper construction and operation of tbe boist and of defendant’s duty to warn plaintiff were proper jury questions. Tbe jury bave now answered all of these questions favorably to tbe plaintiff. Upon tbe first trial there was a conflict between tbe answers to questions 5, 6, and I relating to plaintiff’s assumption of risk and defendant’s duty to warn, and hence tbe verdict would not support a judgment in favor of either party. Tbe present verdict is consistent throughout and sustains tbe judgment entered. Upon tbe former appeal tbe defendant argued that tbe boist was so palpably unsafe to tbe knowledge of tbe plaintiff that be must be held as a matter of law to bave assumed the risk. It now argues that tbe boist was apparently so safe that there was no duty on its part to warn tbe plaintiff or to construct or operate it in any other manner, and that tbe accident occurred by reason of an unexpected operation of tbe boist, owing to tbe fact that tbe men ran to tbe south eighteen or twenty feet and so threw more weight onto tbe south leg of tbe boist and caused it to topple over; that bad tbe men stood under tbe boist and pulled directly down tbe hoist would bave remained firm. It may be conceded that bad tbe men so pulled tbe boist would bave remained as placed. But since it was more or less dangerous for men to stand under timbers weighing from 300 to 400 pounds while they were hoisted forty-three feet in height, and since it required from four to six men to boist such a load, tbe jury would be warranted in finding that a boist constructed to be so operated was not a safe one. They would also be justified in coming to tbe conclusion that it would be practically impossible for six or more men to take bold of a rope so as to pull directly [583] down with a hoist constructed as this was; that it ought to have had a sheave block at the bottom substantially under the top one for the rope to pass through, so the men could stand out from under the timbers hoisted and still exert a perpendicular pull, and that, not having such a sheave block, defendant ought to have foreseen that the hoist would be likely to be operated as it was at the time of the accident. The jury no doubt reached the conclusion evidenced by the verdict from the fact that the hoist as constructed, in view of the load it had to carry, could not be safely operated and therefore did not measure up to the requirements of see. 1636— 81, Stats. 1911. This question was also practically decided on the former appeal, for it appeared in the evidence then as now that the men went to the south as stated, and it was then as now argued in defendant’s brief that it was the negligence of plaintiff’s fellow-servants and not the defendant’s negligence that was the proximate cause of the injury. But the court did not interfere with the- answer to the first question of the verdict then rendered which found the hoist unsafe. Upon the rehearing the correct dimensions of the planks upon which the hoist rested were considered by the court. So the question as to the safety of the hoist and its manner of operation is really foreclosed by the former decision. In any event we are satisfied that each finding of the jury is supported by the evidence. Some exceptions are taken to the exclusion of evidence and to the charge to the jury. Both are without merit. By the Gourt. — Judgment affirmed.