#### Sapienza, Respondent, vs. Worden-Allen Company, Appellant.

*October 31*

November *19, 1912.*

*Negligence: Building operations: Accidental injury: Evidence: Sufficiency: Unsupported verdict.*

Defendant was engaged under a contract in erecting an addition to the power plant of an electric railway company, and had placed several large iron girders so that one end rested upon a concrete wall and the other end upon a large pile of rubbish in an adjacent excavation. While they lay in that position, apparently secure, a small girder lying near was lifted by a -derrick from the rubbish pile, and the plaintiff, who with other employees of the railway company had been engaged in picking up wood and lumber from the pile and who had stood aside during the lifting of the small girder, resumed his work. Within a few minutes thereafter, the cause being otherwise unexplained, the end of one of the large girders slipped from the pile against plaintiff and broke his leg. *Held,*that so far as appears the fall of the girder was purely accidental, the cause thereof resting wholly in conjecture, and that findings by the jury to the effect that the injury was proximately caused by negligence of the defendant in lifting the small girder were unwarranted.

Appeal from a judgment of the circuit court for Milwaukee county: E. O. EsohweixeR, Circuit Judge.

*Reversed.*

This is an action to recover damages for personal injuries sustained by the plaintiff.

The complaint alleges that the defendant, the *Worden-Allen*Company, was erecting under' contract for the Milwaukee Electric Railway & Light Company an addition to the north side of its electric power plant located on Commerce street in the city of Milwaukee, and had piled heavy iron girders, weighing several tons each, in close proximity to a depression or excavation. On the 14th day of March, 1911, while the plaintiff, acting under orders and directions of a foreman of *211his employer, the Milwaukee Electric Railway & Light Company, was in the act of picking np and removing wood and lumber from a pile of rubbish in the depression or excavation,, one of the heavy iron girders fell from its place and rolled down the pile of rubbish against the leg of the plaintiff, causing a fracture of his left leg. The alleged charge of negligence of the railway company in furnishing the plaintiff with, an unsafe and dangerous working place in permitting the iron, girders to be so insecurely piled and placed that one fell and injured the plaintiff was dismissed.

The *Worden-Alien Company*is'charged with negligence in that it violated its duty to the plaintiff to select a proper and safe place to pile the girders and to pile them securely and to-place them in such a position that they would not fall.

A demurrer to the reception of any evidence under the complaint was overruled by the court.

The jury returned a special verdict finding that the defendant, within about five minutes of the accident, had raised a short piece of iron lying partly in the rubbish upon which the long iron column rested and which short piece of iron was only a few inches from the iron column; that the defendant was guilty of a want of ordinary care in so causing the short, piece of iron to be raised; that the want of ordinary care on the part of the defendant was the proximate cause of the injury; and that the plaintiff was not guilty of any want of ordinary care which proximately contributed to his injury.

The court refused to direct a verdict for the defendant; refused to change answers to certain questions of the verdict as-requested by the defendant and to order judgment on the verdict as so changed; refused to order judgment for the defendant notwithstanding the verdict, and to set aside the verdict and grant a new trial; and granted a motion for judgment for the plaintiff on the verdict.

This is an appeal from the judgment.

*212Eor tbe appellant there was a brief by *Flanders, Botium, Fcmsett &■ Bottwn,*and oral argument by *O. F. F aw sett.*

*Harry M. Silber,*for tbe respondent.

Siebecker, J.

Tbe evidence in tbe case shows that in tbe construction of the addition to its Commerce street plant tbe railway company bad thrown tbe rubbish accumulating, during tbe building into an excavation five or six feet deep on^ tbe opposite side of a sixteen-foot alley from tbe addition. Tbe excavation, which was tbe cellar to a building which bad either been removed or never constructed, was surrounded on three sides by concrete walls. Tbe rubbish thrown into tbe excavation extended into tbe excavation for ten or twelve feet on a level with tbe ground and then gradually declined to tbe bottom of tbe excavation.

About two weeks before plaintiff was injured tbe *Worden-Alien Company*bad brought three iron girders or columns, between forty and fifty feet, in length and about twelve by twelve inches, weighing several tons each, to these grounds, and bad placed them so that one end of tbe girders rested on tbe wall surrounding tbe excavation and about eight feet of tbe other end rested on tbe pile of rubbish in tbe excavation. One girder was placed on top of another, while tbe third lay near by. Tbe persons who bandied them testified that they were securely and safely placed.

Shortly before tbe plaintiff was injured be and four other laborers employed by tbe railroad company were ordered by tbe foreman to pick up tbe wood and lumber from tbe rubbish pile in tbe excavation and to load it into a wagon. While they were working at this task tbe foreman for the defendant called to them to look out, and they stood aside while a small iron, girder which lay near tbe large girders was lifted by a derrick from tbe pile of rubbish. There was evidence in plaintiff’s behalf that this short girder was partly imbedded in the pile of rubbish, and that as it was raised by tbe derrick *213tbe large girder was stirred and raised a little from tbe rubbish and that it then settled back into its former place. Immediately after tbe small girder bad been raised tbe five laborers resumed tbeir work of picking up tbe wood from tbe rubbish pile, and while the plaintiff bad bis back turned to tbe large girders tbe end of tbe separate large girder which rested on the rubbish pile slipped from tbe rubbish pile against tbe plaintiff and caused tbe fracture of bis left leg. There is some testimony to tbe effect that tbe slipping of tbe large girder occurred within three minutes after tbe small girder bad been raised.

Tbe appellant challenges tbe court’s ruling to tbe effect that these facts furnish a basis for an inference that defendant’s employees were negligent in conducting these operations ; that such negligence was tbe proximate cause of plaintiff’s injuries; and that plaintiff was free from any contributory negligence. It is obvious from tbe evidence that tbe girders rested safely on tbe rubbish heap up to tbe time that tbe defendant’s servants and tbe plaintiff and bis fellow workmen came there to proceed with tbeir respective tasks; that is, to raise tbe short iron beam or girder and to pick up wood near tbe foot of tbe pile of rubbish in tbe excavation. So far as tbe facts disclose, all parties were rightfully there and each bad knowledge of what tbe others were doing. Can it be said that tbe defendant’s employees were guilty of a .want of care in performing tbe act of raising tbe short piece of iron, which, tbe jury found, proximately caused plaintiff’s injury? Tbe facts in evidence do not warrant such an inference. The claim that this operation caused tbe end of tbe girder that fell from tbe rubbish to rise and fall back and immediately thereafter to slide from tbe rubbish is based on very vague and uncertain evidentiary facts. Tbe facts tending to support such 'an inference are wanting in probative force. Tbe evidence fails to show that tbe girder which injured plaintiff was at all disturbed by raising of tbe small iron. *214Nor does it appear that the operation in any way could cause it to slip from the rubbish pile. The jury’s finding that it did so is a mere conjecture and is not supported by facts or by legitimate inferences therefrom. So far as disclosed, it can be asserted with equal force that the removal of rubbish by the plaintiff and others working with him disturbed the safety of the girder and caused it to slip from its resting place. What caused the girder to fall on plaintiff is shrouded in uncertainty and speculation, and there is no reasonable ground of certainty that it was the result of the acts of the defendant’s employees. Furthermore, there is nothing -in the record to warrant an inference that the falling of the girder was to be anticipated by any one. It appeal’s to have been one of those unusual events which are purely accidental and unconnected with anything the plaintiff or the defendant’s employees did. Under such circumstances and conditions the plaintiff has wholly failed to meet the legal burden of establishing by evidence the necessary facts tending to show any negligence of the defendant which proximately caused his injuries.

The record is reasonably clear that the plaintiff was informed of what defendant was doing in hoisting the iron 'and that he stepped aside from his place near the girder during the initial steps in the operation, and that he then resumed his place near it shortly before the girder fell. Every consideration of the situation suggests that he was as fully apprised of the situation and condition of things and their attendant hazards as were the defendant’s employees, and knowledge of any danger from the girder slipping must be attributed to the plaintiff as well as to any of the defendant’s servants. In such a view of the facts and circumstances, his act in returning to the place of danger would be inexcusable under the rule of ordinary care and would make him guilty of voluntarily exposing himself to it and the risk of injury therefrom. We are persuaded that the evidence does not *215warrant the inference that the defendant’s servants were guilty of a want of care which caused plaintiffs injuries and that he has failed to meet the burden cast upon him of showing a liability. The case should not have been submitted to a jury, under the rule of *Hyer v. Janesville,*101 Wis. 371, 77 N. W. 729; *Schell v. C. & N. W. R. Co.*134 Wis. 142, 113 N. W. 657; and *Chybowski v. Bucyrus Co.*127 Wis. 332, 106 N. W. 833.

The defendant’s motion for judgment should have been granted.

*By the Court.*— Judgment reversed, and the cause remanded with directions to award judgment dismissing the complaint.