Schmit v. Frederickson

KerwiN, J. Two questions are presented upon tbis appeal. (1) Whether tbe defendants were guilty of negligence j and (2) whether tbe plaintiff was guilty of contributory negligence. After a careful examination of tbe record we are convinced tbat there is no proof of negligence. Tbe servants Brady and Nnetchges deny tbat tbe timber was thrown or tbe plaintiff injured in any manner. Tbe burden of proof .was upon the plaintiff to prove negligence. Tbe operation of unloading tbe timber was very simple. The timbers were 8x8 and twelve feet long. Tbe wagon was close to tbe lumber pile and tbe load about on a level with tbe 'lumber pile. Tbe plaintiff stood back of the wagon and swung, or assisted in swinging, 'the timbers so as to get tbe front end on tbe pile first, and with tbe assistance of Xnetchges and Brady they were placed on tbe pile. Tbe negligence complained of is tbat Knetchges threw or dropped tbe timber in such manner as to injure [430] plaintiff. There is. no evidence that Enetchges threw or dropped the timber in a negligent manner. True, plaintiff testified that Enetchges threw or dropped it, but he admits that he was not looking when the timber dropped, and that his knowledge as to whether it was thrown or dropped was that he felt it. The evidence is consistent with the idea that the timber dropped while Enetchges was in the exercise of ordinary care in handling the front end of it. Negligence is never to be presumed. There must be some proof of it. The drop was slight, only about a foot. At the time it occurred Enetchges was holding the front end, had it under his arm. The plaintiff was manipulating the rear end, “was trying to pull it off.” There is no evidence that Enetchges was not exercising ordinary care in managing the front end, unless it can be said that he negligently dropped his end, and there is no evidence of this. The mere fact that the end of the timber dropped a foot does not alone constitute negligence. Proof of negligence of a fellow-servant in such simple operations must affirmatively appear. The jury cannot be permitted to assume that there was negligence when the undisputed evidence is consistent with no negligence. Johnson v. Berwind F. Co. 154 Wis. 1, 141 N. W. 1018; Salus v. G. N. R. Co. 151 Wis. 546, 141 N. W. 1070. We are convinced that there was no evidence of negligence of defendants. This being so, we need, not consider the question of contributory negligence. By the Oourt. — The judgment is reversed, and the cause remanded with directions to dismiss the complaint.