Peschel v. Klug

WiNslow, C. J. Our statute provides (sec. 2394 — 48) that every employer shall furnish a place of employment which shall be safe for employees therein “and for frequenters thereof,” and the appellant’s contention is that, in view of the testimony of the plaintiff and his helper that the truck had not moved or touched the timbers before the topmost timber fell, there was a question for the jury as to whether the timbers did not fall because improperly and insecurely piled, or, in other words, because of a violation of this safe-place statute, it being undisputed that the plaintiff was a “frequenter” of the place though not an employee of Klug and Smith. It is an undisputed fact that the timbers were placed there by the employees of Klug and Smith for ultimate use in the building which they were con522 structmg, and it seems clear that Klug and Smith had the right to decide, and did in fact decide, where they should be placed and how they should be piled. It is a principle quite well established that where a machine or appliance, under the management of defendant, inflicts an injury by reason of an abnormal and unexpected movement which could not have taken place had there been proper care exercised in its management or supervision, the very fact of the abnormal action, in the absence of satisfactory explanation, affords evidence of lack of such care. Cummings v. Nat. F. Co. 60 Wis. 603, 18 N. W. 742, 20 N. W. 665; Carroll v. C., B. & N. R. Co. 99 Wis. 399, 75 N. W. 176. No reason is perceived why the principle does not apply to this case. The timbers were piled on the margin of the alley by the defendants in the prosecution of their business and were in their care. It was their duty under the stat1 ute to so pile them that the alley could be safely used in the usual and ordinary manner by their employees and other frequenters. If the timbers fell on such an- employee or frequenter without the application of force or violence, that fact itself would necessarily be evidence of unsafe piling. There was evidence, which cannot be said to be incredible, that such was the case here; hence the question ás to whether the timbers were piled in such an insecure way that they fell on the plaintiff in obedience to the laws of gravitation and without other or adequate cause was a question for the jury. It will not do to say that', because three witnesses testified that the front wheels and handle of the truck swung around arid struck the timbers, the fall of the top ’ timber is satisfactorily explained and the principle of res ipsa loquitur does hot apply. In the first place, the plaintiff and his helper- testify directly that the truck did not touch the timbers before the fall of the top timber, and we cannot say that this testimony is incredible or so at variance with'undisputed physical facts as tó leave no jury question. In [523] the second place, if it be conceded that the wheel or handle of the truck did strike the timbers, the questions whether some such an occurrence ought reasonably to have been anticipated by the defendants, and, if so, whether in view of such anticipation the piling was insecurely done, would still remain. It is an undisputed fact that the timbers were large and heavy timbers weighing from 1,600 to 1,800 pounds each, and it is mere matter of common knowledge that it would take a blow of great force to make the top one fall if they were piled level and on a secure foundation. It is plainly a jury question in this case whether the blow alleged to have resulted from the slewing of the truck. would have been sufficient to cause the timber to fall had the piling been properly done. The jury questions at the close of the evidence may be summarized as follows: (1) Were the timbers piled so insecurely that the alley in their vicinity was unsafe for employees and frequenters using the alley in the ordinary and usual manner? (2) If “Yes,” then did the top timber fall solely because of such insecure piling, or did it fall because of the insecure piling and a blow from the truck combined? State which. (3) If from the two causes combined, then ought defendants to have anticipated, when the timbers were piled, that such an event as the blow from the truck might probably happen? No claim of contributory negligence apparently was made on the first trial, but if such claim be made upon the new trial it may become necessary to submit another question covering that subject. By the Court. — Judgment reversed, and action remanded for a new trial.