#### Lewandowski, Respondent, vs. McClintic-Marshall Construction Company, Appellant.

*October 30, 1913*

January *13, 1914.*

*Negligence: Personal injury: Dangerous method of doing worft: Tossing heated rivets: Failure to give warning: Questions for jury: Special verdict: Waiver of objections: Appeal.*

1. Plaintiff, a bricklayer not in defendant’s employ, while working upon the first floor of the east wing of a building was struck and injured by a heated holt or rivet. Between the wall at which he was working and the west wing of the building was a court about thirty feet wide. On the seventh story of the west wing defendant’s employees were riveting the steel framework. No one else was engaged in that work around the building. The evidence — which showed among other things that the rivets, after being heated to a white heat, were tossed sometimes a distance of seventy-five or eighty feet to a helper who caught them in a pail or bucket, but missed about one in a hundred — is *held*to sustain findings by the jury that defendant ought reasonably to have anticipated that injury *might*happen from the manner in which the work was done; that it was defendant’s duty to warn plaintiff of,.his danger; and that failure to warn was the proximate cause of the injury.

2. The inference being irresistible that the rivet which struck plaintiff was one heated by defendant’s employees, it was not error to refuse to submit that question to the jury.

3. Although the complaint did not set up failure to warn as a ground of negligence, yet the defendant, not having objected to the submission of that question to the jury, cannot on appeal successfully assert that such submission was error.

*323Arread from a judgment of tbe circuit court for Milwaukee county: J. 0. Ludwig, Circuit Judge.

*Affirmed.*

The defendant' company was engaged in constructing the steel and iron work of a building being erected in the city of Milwaukee. Plaintiff, a bricklayer in the employ of Strach-ota & Sons, mason contractors, was at work upon the same building, and at the tiiüe of. the injury was on the inside of the wall of the east wing, which wall at that time was built up about three feet from the first floor on which he was standing. The employees of the' defendant were working on the seventh floor of the west wing riveting the steel and iron frames. Between the two wings there was a court about thirty feet wide. It was the practice of the man who heated the rivets or bolts to toss them by means of a tongs to the man who did the riveting, and he or his helper caught them in a bucket or pail. The, complaint alleged that during this operation one of- the. rivets or bolts dropped down through the building and struck the plaintiff upon the shoulder. This action was brought to recover damages for injuries sustained. The complaint 'charged that the defendant performed the work of transferring bolts from where they were heated to the riveter in a negligent manner, and also that the employees of-the defendant negligently performed the work. The jury returned a special verdict in which it found (1) that plaintiff was injured by being struck by a riveting bolt; (2.) that defendant ought reasonably to have anticipated that injury might happen from the manner in which the work was done;' (3) that it was defendant’s duty to warn plaintiff of his danger; (4) that failure to warn was the proximate cause of the injury. Erom a judgment rendered on this verdict the defendant appeals.

Eor the appellant there was a brief by Flanders, *Bottum, Fawsett & Bottum,*and oral- argument by *Roger G-. Flanders.*

Eor the respondent the cause was submitted on the brief of *Casimir Qonslci.*

*324Tbe following opinion was filed November 18, 1913:

BaeNes, T.

Tbe appellant' contends tbat it was error not to allow tbe jury to say whether tbe rivet which struck tbe plaintiff was dropped or thrown by defendant’s employees, and also tbat tbe court erred in not directing a verdict for tbe defendant in tbe first instance, and in not changing tbe answers to certain questions in tbe special verdict' after it was returned and awarding judgment for tbe defendant on tbe verdict as corrected.

Tbe evidence, and tbe pleadings as well, showed tbat tbe defendant was engaged in riveting tbe iron framework of tbe building and tbat such rivets were heated and tossed or passed by tbe man who heated them to tbe helper of tbe riveter, and tbat occasionally tbe helper would miss a rivet so tossed and tbe same would fall, and it further showed tbat there was no one else engaged in this work around the building. The inference would seem to be irresistible that the rivet which struck tbe plaintiff was one tbat was heated by tbe defendant’s employees. Whether there was any negligence in permitting it to-drop is another question.

Tbe complaint was framed on tbe theory tbat tbe defendant' did its work in a negligent manner tbat was dangerous to other employees around the building. This ground of negligence was not submitted to tbe jury, probably because tbe court thought either, that' the evidence showed tbat tbe defendant was doing its work in the usual and customary manner, or because it thought tbat in this case there was no evidence to show that tbe rivet in question dropped because of any negligence on tbe part of defendant or its servants. Tbe rivet might accidentally drop while tbe helper was passing it to tbe riveter, or while tbe riveter was inserting it in tbe framework, without any negligence on the part of tbe employees. Tbe evidence failed to show tbat tbe rivet *325dropped because of the failure of the helper to catch it when thrown by the man who heated it.

Failure to warn was not' set forth as a ground of negligence in the complaint, but was submitted to the jury. The defendant asserts'that this is'error.' No objection was taken to the submission of the question until after the jury had returned its verdict. If such an objection had been made the court would undoubtedly have entertained a motion to amend the complaint, and, if this particular issue had not been fully tried, ■ would have permitted further testimony to be taken thereon. We do not think that the defendant should be allowed to experiment with the jury, but conclude that if It desired to object1 to the submission of this ground of negligence because not pleaded it should have done so before the jury passed on the question. The defendant was entitled to be apprised of this ground of negligence, if relied on. If it existed, the plaintiff’s action should not be defeated because of his failure in the first instance to plead it. The trial court would not hesitate'to amend the pleading if necessary, hut' would permit the defendant to have a fair trial on the issue. Having permitted the question to be submitted without objection, we' must assume that the court considered that it had been fully tried.

We. also think that the jury was warranted in answering this question as -it did. These rivets were in reality iron bolts, which, falling a distance of .seventy feet', would acquire considerable momentum, and considering the fact that they were heated to a white heat' might well seriously injure any person whom they struck. It is not disputed that after they were heated they were sometimes tossed a distance of seventy-five or eighty feet to the helper, and that the only means he had of catching them was a pail or bucket and that as a matter of fact-he would occasionally miss, the evidence showing that about one bolt in a hundred would be missed. *326There were a number of gangs of men around, the building performing various, hinds of work thereon. Any of the men who were working within range of these missiles were liable to be hit and hurt at any time, as well as men who were passing back and forth through the building under where the riveting was being done. It would almost seem that as applied to this building the work was carried on in an obviously dangerous manner. But whether it was or not, the work of the defendant was such that it might at any time result in injury to the other employees about the building. Under these circumstances the jury might well find that it was the defendant’s duty to warn employees about the building of the manner in which its work was being done and of the hazard to which they were subjected therefrom. *Olson v. Phœnix Mfg. Co.*103 Wis. 337, 79 N. W. 409; *Cummings v. C. W. Noble Co.*143 Wis. 175, 126 N. W. 664, and cases cited. Such employees would then have an opportunity to seek employment elsewhere while the riveting was going on, or to refuse to work in that part of this particular building where they would be subjected to such danger. The plaintiff had been at work where he was injured but a comparatively short time before the injury, and he testified that he had never seen a rivet fall until this particular one struck him. That he was within range of these falling missiles is very evident from the fact that he was struck by one. We cannot assume that somebody deliberately went out of his way to throw the rivet at the plaintiff. We think there is sufficient evidence in the record to sustain the findings of the jury and that the judgment should therefore be affirmed.

*By the Court.*— Judgment affirmed.

A motion for a rehearing was denied, with $20 costs, on January 13, 1914.