Lyes v. Superior Shipbuilding Co.

Siebecker, C. J. The jury’s answer to question 5 shows that they found that Lyes, the deceased, was informed of the danger to his safety attending the operation of the crane at the time of the accident, and that he, as an ordinarily careful and prudent man, was guilty of a want of ordinary care in failing to protect himself from being injured by having his head caught between the angle-iron of the landing platform for entering the cabin and the jamb of the cabin door. The evidence tends to show that.the deceased was an intelligent and experienced person in working about machinery and that he had several years’ experience as a workman in the electrical business. He, with one Anderson, as heretofore stated in detail, worked in and about the cabin of the crane and passed up and down the stationary stairway attached to the frame and bridge and [154] leading to the door of the cabin in passing in and out of the cabin over the landing platform connected with the stairway, over which persons passed to go in and out of the cabin. The angle-irons supporting the platform were in plain sight to any one going in and out of the cabin. The jury was well sustained in concluding that the deceased understood the construction of the bridge, the arms of the crane, and the cabin with its different parts and apparatus. It is manifest from what transpired during the forenoon of the day in question and after Anderson, Facette, and deceased had returned to the crane after lunch to test the efficacy of the repairs 'made during the forenoon, that the deceased was informed that the crane was to be put into operation and that he was engaged with Anderson and Facette in making this test. Under these circumstances the jury was abundantly warranted in finding that the deceased was fully informed that the crane was to be operated to lift the propeller wheel which had been selected for testing the repairs on the crane. The evidence shows that the deceased participated in making the test; that the propeller was so located as to require the moving of the crane arms on the bridge and the cabin and the trolley and hook which was to be hitched onto the propeller wheel in order to lift it; that the deceased, Anderson, and Facette had entered the c^bin to operate the crane to make the test; that Facette was in place to- operate the controllers of the motors which operated the crane on the bridge, the cabin on the crane arm, and the trolley and hook for lifting the trolley wheel; that Anderson called to Facette: “Everything is all right— go ahead,” and that Facette immediately started the motor to move the crane on the bridge and then started the motor that moved the cabin; that the cabin moved a few inches; that deceased’s head was caught between the door jamb and the angle-iron, injuring him and causing his death. There is evidence tending to show that decedent was standing inside the cabin near the door immediately before these [155] movements of the cpane and cabm started. The conditions surrounding him at this time were open and obvious, and he, as an intelligent and experienced man, must be held to. exercise the degree of care for his protection from danger that an ordinarily careful and prudent person would exercise under the same or similar circumstances. Under the foregoing facts and circumstances surrounding this accident the decedent must be held to have had knowledge of all the obvious perils that threatened his safety which were discoverable by reasonable observation and the use of his senses. It is contended that the decedent was subjected to a hidden danger in that the operator of the crane started the cabin without-giving him notice thereof. This claim is not well founded because the facts and circumstances warrant the inference by the jury that decedent was informed of the necessity of moving-the cabin or trolley with the hook in order to hitch onto- the .trolley wheel, and that he and his associates were in the cabin to do this very thing. We think under all of the facts it was a jury question whether or not decedent was guilty of a want of ordinary care in putting his head in the dangerous position which caused his death. We consider this question, under the facts and circumstances of this case, to be within the rule stated in Klotz v. Power & M. M. Co. 136 Wis. 107, 116 N. W. 770: “It is well settled that, where there is uncertainty as to the existence of either negligence or contributory negligence, the question is not one of law, but of fact, and to be settled by a jury ;■ and this whether the uncertainty arises from a conflict in the testimony, or because, the facts being undisputed, fair-minded men will honestly draw different conclusions from them.” Richmond & D. R. Co. v. Powers, 149 U. S. 43, 13 Sup. Ct. 748. It is considered that the circuit court properly submitted the contributory negligence question to the jury and that the judgment awarded on the verdict must stand. By ■the Court. — The judgment appealed from is affirmed.