Schaut v. Barkhausen Coal & Dock Co. , 157 Wis. 626 ( 1914 )

Vietje, J.

The only question litigated on the appeal was plaintiff’s contributory negligence, and the greater part of the effort of counsel on both sides was directed to the question of whether or not coal could be thrown backwards when dumped, under the circumstances in which it was dumped in this case. We shall assume that the trial court was correct in holding that it could not, and we shall dispose of the case upon the theory that the bucket had not passed completely out from over the hatchway when it dumped and that plaintiff had made a step or two out into the hatchway when he was struck. The question arises, Can plaintiff be held to be guilty of contributory negligence as a matter of law under such circumstances? The evidence shows that a bucket is loaded about every four minutes, and that as soon as it has safely passed from over the hatchway the men are required to clean up coal in the wings or other places where it is needed until another bucket is ready for loading. The men are expected to step out of the hatchway while a bucket is being hoisted and to remain out from under it until it has safely passed beyond the hatchway so that there is no danger from falling coal. It is obvious that it requires close observation and some judgment to determine when a bucket has safely passed a hatchway. The boom ran out over the center of the hatch, and the buckets, when they reached it and began to travel thereon, would be a considerable distance above where the men stood in the hold of the vessel. The speed of the bucket, the distance of the end of the boom from the hold of the boat, and the position of the man looking at the disappearing bucket would all affect the question of when it had passed out of danger. Under such circumstances it seems to us it was a question for the jury to say whether or not plaintiff was guilty of contributory negligence in stepping ont before be was safe. Work must necessarily be active when boats are unloaded, and there is not much time for careful observation and examination. Diligence if' coupled with ordinary care ought not to lessen the chance of recovery from an injury sustained while at work. Plaintiff testified that he looked at thé bucket and thought it had passed the hatch when he started to go to clean up. Evidently he was mistaken, but the mistake does not show negligence as a matter of law. Inferences to the effect that he was in the exercise of ordinary care when he stepped out to resume work may reasonably be drawn from the situation that existed owing to the difficulty of accurately determining-the exact line between safety and danger. We think it was peculiarly a question for the jury to determine whether or not he was in the exercise of ordinary care at the time he was injured, and for that reason shall forbear to comment in detail upon the evidence. In reaching this conclusion we-have not forgotten the fact that this bucket had dumped twice before that day while plaintiff had been at work. This is a circumstance that must be weighed by the jury together with the other facts and circumstances touching the question, of plaintiff’s contributory negligence. •

By the Court. — Judgment reversed, and cause remanded for further proceedings according to law.