Miller v. Mead-Morrison Co.

The following opinion was filed November 13, 1917: Ejeewin, J. 1. The controlling questions upon this appeal are: (1) Whether actual notice to the defendant that the structure furnished to the Milwaukee Western Fuel Company was imminently dangerous was necessary; and (2) Whether the evidence was sufficient to support the answer of the jury to the second question of the special verdict that the defendant did not have knowledge that the structure was imminently dangerous. A very able brief is presented on the part of the appellant,- and it may be said that there is lack of harmony in the authorities cited to us in other jurisdictions. It would be difficult, if not impossible, to reconcile all the authorities upon the subject with settled rules of law. We are favored by the learned circuit judge who tried the case with an able opinion on defendant’s motion for judgment on the verdict, which opinion is in the case, and presents concisely the controlling questions involved, with his conclusion that the defendant was entitled to judgment on the verdict. We do not consider it necessary to examine authorities in other jurisdictions, because we think the law controlling this case is settled by this court. In the case of Hasbrouck v. Armour & Co. 139 Wis. 357, 121 N. W. 157, referred to and [541] quoted from by counsel on both sides, the rule is laid down thus: “The manufacturer or dealer who put out, sells, and delivers, without notice to others of its dangerous qualities, an article which invites a certain use, and which, article is not inherently dangerous, but which by reason of negligent construction he knows to be imminently dangerous to life or limb, or is manifestly and apparently dangerous when used as it is intended to be used, is liable to any person' who suffers an injury therefrom, which injury might have been reasonably anticipated.” The jury found that the manner of fastening the rail as constructed by the defendant was imminently dangerous to life and limb when used as it was intended to be used, and that the defendant was guilty of negligence in fastening the rail; that the defendant did not have knowledge that the manner of fastening the rail was imminently dangerous to life and limb when used as it was intended to be used. The particular defect in the structure furnished by the defendant was claimed to be the defective fastening of a guard rail. The contention of the appellant is that, the guard rail having been insufficiently fastened and being imminently dangerous, notice to the defendant was imputed. This contention is contrary to the rule laid down in the Hasbrouck Case. The knowledge referred to in the Hasbrouck Case means actual knowledge, and is in harmony with Zieman v. Kieckhefer E. M. Co. 90 Wis. 497, 501, 63 N. W. 1021, and the weight of authority in other jurisdictions. Huset v. J. I. Case T. M. Co. 120 Fed. 865; Heizer v. Kingsland & D. M. Co. 110 Mo. 605, 19 S. W. 630, 33 Am. St. Rep. 482; Slattery v. Colgate, 24 R. I. 220, 55 Atl. 639; O’Brien v. American B. Co. 110 Minn. 364, 125 N. W. 1012, 32 L. R. A. n. s. 980; Kuelling v. Roderick Lean M. Co. 183 N. Y. 78, 75 N. E. 1098; Lebourdais v. Vitrified W. Co. 194 Mass. 341, 80 N. E. 482. 2. It is further contended by counsel for appellant that [542] the evidence was not sufficient to support the answer of the jury to the second question. Careful examination of the evidence convinces us that the finding is well supported by the evidence. The structure in question was finished and turned over to the Milwaukee Western Fuel Company about twenty months, before the injury complained of occurred. The operation of this coal-handling device caused considerable strain upon the structure, and moreover it was exposed to weather conditions during the twenty months after it was turned over to the fuel company and before the injury. It also appeal’s from the evidence that the guard rail which gave way was quite substantially constructed and fastened. At least it cannot be said upon the evidence produced that defendant, as matter of law, was bound to know, in view of the manner of construction, that it was imminently dangerous. In reference to the construction the learned trial judge summed up the evidence as follows: “The only respect in which the railing which gave way was defective and therefore imminently dangerous (as became apparent upon the happening of the accident) was the insufficient manner in which it was fastened at its west end. As to the fastening at that end, the evidence discloses that it was united by a miter joint to another horizontal railing which was at right angles to it; that both railings were pieces of 2 x 4 dressed to a thickness of one and five-eighth inches and rested at the miter joint upon an upright 2x4 inch wooden stanchion; that the railing which gave way was fastened to the stanchion by a pail driven vertically into the stanchion to a depth of at least one-half inch, and to the other railing by one twenty- or thirty-penny nail driven horizotally at the miter joint through it into the other railing, and by another twenty- or thirty-penny nail driven likewise horizontally at the miter joint through the other rail into the railing which gave way; and that that other rail was in turn fastened to that upright stanchion by a twenty- or thirty-penny nail driven through it vertically. If the fastening of the rail which gave way consisted solely of the shorter nail driven through it vertically into the stanchion, there might be occasion to change [543] tbe jury’s answer to tbe second question. However, tbe security of that fastening was not dependent solely upon that one nail. Tbe other railing was securely fastened to tbe stanchion, and tbe fact that the defendant’s carpenter used two twenty- or thirty-penny nails to fasten the two railings together at the miter joint, in connection with the shorter nail driven vertically through the railing which gave way, seem to me to admit of the conclusion at which the,jury arrived, namely, that the defendant’s carpenter (and consequently the defendant, for whom he was acting) believed the manner of fastening to bo adequate, and, consequently, that the defendant did not have actual knowledge that it was imminently dangerous.” 3. Error is assigned because the court refused to submit the following question: “Did the employees of defendant, Mead-Morrison Company, fail to exercise ordinary care in constructing and fastening the north rail attached to the platform described in the testimony, in the manner in which the same was constructed ?” The contention is that the jury were misled by the third question, in that it asked them to find whether the defendant was guilty of negligence, and it is argued that, if the court had submitted the question requested, the second question, as to the knowledge of the defendant, would have been unnepes-•sary; that the jury became confused as to whether notice to the employees who built the structure was sufficient. It is clear that the jury could not have been'misled, because the court charged them on this point most favorably to the plaintiff as follows: “In relation to the second question, you will understand that it is sufficient to charge the defendant with such knowledge as is mentioned in that question if such knowledge was possessed at the time the work was being performed by the employee or the employees of the defendant who fastened that rail. In other words, whatever knowledge such an employee had at that time in relation to the manner in which [544] that rail was fastened was, as a matter of law, the knowledge of the defendant.” We do not deem it necessary to discuss the many cases cited by counsel for appellant, because we are satisfied that upon the findings of the jury, supported by the evidence, the defendant is entitled to judgment under the rule laid down by this court in Hasbrouck v. Armour & Co. 139 Wis. 357, 121 N. W. 157, and Zieman v. Kieckhefer E. M. Co. 90 Wis. 497, 501, 63 N. W. 1021. Knowledge that the structure was imminently dangerous was necessary in order to entitle the plaintiff to recover, and this knowledge was upon sufficient evidence negatived by the jury, hence no recovery can be had. * By the Oourt. — The judgment is affirmed.