Kelly v. Kneeland-McLurg-Lumber Co.

Kerwin, J. The chief contention of the appellant is that the court erred in denying defendant’s motions for nonsuit and directed verdict. It is insisted that no negligence was shown on the part of the defendant and that the evidence-showed contributory negligence on the part of plaintiff. 1. The first question presented is whether the evidence was sufficient to support the finding of the jury to the effect that the defendant failed to furnish the plaintiff a place of employment as free from danger as the nature of the employment reasonably permitted. The provisions of the statute-applicable are as follows: Sec. 2394 — 48, Stats. 1911, requires every employer,, among other things, to furnish a place of employment “which shall be safe for employees.” Sub. 1, sec. 2394 — 49, provides that no employer “shall require, permit or suffer any employee to go or be in any employment or place of employment which is not safe.” Sub. (11), sec. 2394 — 41, Stats. 1911, provides that “The term ‘safe’ and ‘safety’ as applied to an employment or a place of employment shall mean such freedom from danger to the life, health or safety of employees ... as the nature of the employment will reasonably permit.” Sub. (1), sec. 2394 — 41, provides: “The phrase ‘place of’ employment’ shall mean and include every place, . . . where161 either temporarily or permanently any industry, trade or business is carried on. . . This court in several cases has construed the foregoing statutes. Rosholt v. Worden-Allen Co. 155 Wis. 168, 144 N. W. 650; Sparrow v. Menasha P. Co. 154 Wis. 459,143 N. W. 317; Murphy v. Interlake P. & P. Co. 156 Wis. 9, 145 N. W. 193; Kendzewski v. Wausau S. F. Co. 156 Wis. 452, 146 N. W. 516; Sadowski v. Thomas F. Co. 157 Wis. 443, 146 N. W. 770. The plaintiff received the injury complained of while in the employ of the defendant and engaged as toploader in loading logs upon a car. It was his duty under the employment to be upon the car and unhitch or release the chains when the bunch of logs was hoisted onto the car by the loader. At the time of the accident, when the bunch of logs rested upon the load they spread so the bunching chains were taut. The plaintiff, in order to get slack in the chains, rolled up one of the logs in the bunch and got the chains unhooked. Just after getting the chains free the logs started to roll, plaintiff jumped from the load, one of the logs rolled off the car, struck him, and caused the injury. About ten or twelve logs from eight to nine inches in diameter were hoisted onto the car in a bunch and held together by bunching chains. There is ample evidence that the appliances used by defendant in loading the logs were not as safe as the nature of the employment would permit. The evidence shows that the place could have been rendered safe by the use of “trip bunching chains,” which would not have required plaintiff to be in a place of danger, or by the use of a portable platform suspended between the booms, and in other ways. So it is clear from the evidence produced that the jury were well warranted in finding that the place of employment was not as free from danger as the nature of the employment reasonably permitted. 2. It is contended that the finding of the jury that the [162] plaintiff was not guilty of contributory negligence is not supported by tbe evidence. Claim is made by appellant tbat plaintiff should have stood upon the opposite side of the bunch from the side where he stood when injured. There is an abundance of evidence that the place where he stood when he unhitched the chains, just before the injury, was the place usually and ordinarily occupied by toploaders and no more dangerous than the other side of the bunch of logs. Plaintiff had not been instructed to do the work in any other way than he had done it. He had a right to believe, under the evidence, that a position on the opposite side of the bunch would have been as dangerous, or more so, than the position he occupied at the time of die injury. The appellant also complains of error in refusal to give certain requested instructions on negligence and contributory negligence. There was no error, certainly no prejudicial error, under this head. 3. It is further contended that the damages are excessive. The court below refused to disturb the verdict on the question of damages, and we are not able to say that if was wrong in so holding. True the damages are quite large, but the injury was very serious and permanent. The plaintiff had three operations and suffered much pain. He was twenty-two years of age and earning $55 per month at the time of the injury. At the time he was injured he weighed 180 pounds and at the time of trial below weighed 142 pounds and was unable to work. We find no reversible error in the record. By the Court. — The judgment is affirmed.