Fjelstad v. Walsh ( 1943 )

Action by Florence Fjelstad, as administratrix of the estate of Joseph C. Fjelstad, deceased, and another, against Emil C. Walsh and another, copartners as Walsh Steenberg and another. From a judgment dismissing the complaint, entered on an order directing a verdict in favor of defendants, the plaintiffs appeal.

The case involves the killing by a truck of the defendants Walsh Steenberg, driven by their employee, Webster, of a workman engaged in helping to guide onto a standing truck, hereinafter called the "Armco truck," sections of iron pipe being loaded by a crane from a pile of pipe located west of the truck. The accident occurred within the inclosure of the Badger Ordnance Works. The Armco truck was a trailer truck and was standing facing south on the west side of a definitely marked road thirty feet wide running north and south within the inclosure. A third truck, hereinafter called the "Mason truck," also a trailer truck, was standing facing north on the east side of the road with its trailer about opposite the trailer of the Armco truck. A section of the pipe was eighteen feet long and eighteen inches in diameter and weighed two thousand five hundred pounds. The crane lifted sections of the pipe from the pile, moved it from the pile to a point over the truck and eased it down onto the truck. Several lengths of pipe were laid side by side on the bed of the truck, and the pipe being loaded when the accident occurred was second on the east side. As the pipe moved it swung and when it got over the truck it might be crosswise of it. Three men stood beside the platform of the truck, one in the middle and one at each end. If the pipe hung crosswise, when the crane lowered the pipe to within reach the middle man would swing it lengthwise of the truck and the other two as it was lowered would guide it into notches cut into timbers, laid crosswise of the truck platform at the ends. The platform of the truck was about eight feet wide and twenty-five feet long including the trailer. The three men were instructed not to get under the pipe as it swung and were required to take positions on the far side of the truck to avoid danger of injury if the pipe fell. At the time of the accident the truck of the defendants that struck the deceased was approaching the Armco truck, headed south, traveling at a speed of two to five miles per hour. The position of the standing trucks, the position of the three men and the operation being performed were in plain view of Webster, the driver of the approaching truck. At the immediate time a pipe was hanging about six feet over the truck onto which it was being lowered. The three men whose duty it was to guide it into the proper grooves were standing in line two to four feet from the east side of the Armco truck platform, the deceased at the front end. The three men were intently watching the pipe overhead, absorbed in their work. No warning of the approaching truck was given. None of the five surviving men engaged in the loading operation heard or saw the approaching truck. If the pipe came over the Armco truck crosswise, if it was to be laid second from the east, the east end of the pipe would extend seven or eight feet beyond the east side of the truck, and if it was to be swung toward the deceased to get it lengthwise the deceased would necessarily have to stand or move so as to be out from beneath it. The clearance between the trailers of the standing Armco and the Mason trucks was twelve to fifteen feet. The defendants' truck was loaded at the bottom with sections of three-inch plank, forty-six and a half inches long laid crosswise end to end, and some of the ends stuck out on the west side twelve inches or so., as the jury might find from the evidence. The platform of the defendant's truck was eight feet wide. Atop these crosswise pieces of plank long planks were laid lengthwise. The truck had passed over a railroad track which crossed the road at right angles about half a block from where the Armco truck stood. The truck passed the first two men and struck the third. Everybody in position to see was apparently watching the pipe. Nobody, not even the driver of the approaching truck, saw how the deceased was struck or where he was when struck or whether he stepped east of the line of the other two men. The deceased received a head wound and there was hair on a projecting piece of plank to warrant inference that the wound was made by the plank. The deceased was rendered unconscious by the collision, and remained unconscious for a short time thereafter. At the close of the testimony the defendants moved for a directed verdict, the motion was granted, and judgment was entered dismissing the complaint. The action is by the personal representative of Joseph C. Fjelstad under the death-by-wrongful-act statute, sec. 331.03, Stats., to recover damages for the wrongful killing of the deceased through the negligent driving of a truck by an employee of the defendants Walsh Steenberg. A jury was impaneled and the plaintiff administratrix presented her evidence in support of the complaint. At the close of the testimony the defendants moved for a directed verdict which was granted and judgment of dismissal was entered. The plaintiffs appeal.

The evidence adduced is sufficiently stated preceding the opinion. The appellants claim that upon that evidence the case was for the jury. The defendants contend that the evidence presents no jury question as to defendants' negligence; that as matter of law the deceased was guilty of contributory negligence; and that if the defendants' driver was negligent the deceased's negligence was as matter of law as great or greater than the negligence of the defendants' driver, and that under the comparative-negligence statute, sec. 331.045, the judgment of dismissal was in any view correct.

We are of opinion that the case was for the jury. Whether the defendant was causally negligent for not blowing his horn, whether in view of the distance between the two standing trucks and the position of the three men and their obvious absorption in their immediate work the defendants' driver was causally negligent in guiding or not stopping his truck until the loading of the pipe was completed, and whether, in view of the fact that Webster did not see how the contact between the deceased and his truck occurred, Webster kept a proper lookout, were all jury questions. We are also of opinion, in view of the absorption of the deceased in his immediate task, that negligence is not to be presumed, and that the burden of proving the deceased's contributory negligence was on the defendants, that question also was for the jury (Dinan v.Chicago M.E.R. Co. 164 Wis. 295, 159 N.W. 944), as was that of comparative negligence if the defendants were found negligent.

We are aware of the rule relied on by the defendants' counsel that we cannot overrule a trial court in granting a directed verdict unless its ruling was clearly erroneous. The ruling seems to us clearly erroneous.

By the Court. — The judgment of the circuit court is reversed and a new trial ordered.