#### Lueckel, Administrator, Appellant, vs. Preston, Respondent.

*September 16*

October 7, *1913.*

*Master and servant: Negligence: ■ Death of servant: Direction of verdict.*

In an- action for tibe death, of plaintiff’s intestate, who was caught and crushed between two loaded wagons, one of which he had just guided into defendant’s storage building, it is *held*upon the evidence (stated in the opinion) that a verdict for the defendant was properly directed, no negligence upon his part being shown and the dangers of employment, if any, being as apparent to the deceased as to the defendant.

Appeal from a judgment of the circuit court for Brown county: S. D. HastiNgs, Circuit Judge.

*Affirmed.*

*Francis 8.*Bradford, for the appellant.

*430For the respondent there was a brief signed by *A. M. Spencer,*attorney, and *P. II. Martin,*of counsel, and oral argument by *Mr. Martin.*

KeewiN, J*.

This action was bi’ought' to recover damages occasioned by the death of plaintiff’s intestate. The court below directed a verdict for the defendant, and plaintiff appealed.

The evidence shows without substantial dispute that the defendant was at the time of the injury engaged in storing cabbage in a storage building, and that the deceased, William Weiland, was in his employ. Two wagons were used, each twelve feet eight inches long, with racks five feet wide at the top. The storage building was about thirty-two feet long and twenty-one feet wide, inside measurements. There was a driveway seven feet three inches wide running lengthwise the building from the east to the west end. There was a window in the west end two feet three inches from the ground and about five feet high and two feet three inches wide.There was also a window in either end of the attic two feet three inches wide and two feet eight inches high. The wall of the building was three feet thick. The wagons mentioned were drawn to the building loaded with cabbage, each wagon and load weighing two and one-half tons. One wagon had been drawn into the building and the tongue extended through the window at the west end, the front1 end of the rack being within about a foot of the window. The loaded wagons were drawn into the building by means of a rope sixty-five feet long attached to the tongue and extending over the driveway and through the window at the west end, the team of horses attached being at the west end of the building. In drawing in the second wagon a rope was attached to the tongue at the evener pin, run through the driveway under the first wagon, out through the west window, and attached to the evener to which the horses were hitched. The defend*431ant was at the east end of tbe building, where the wagon was being drawn in, and gave command to the driver of the team as to the starting of the horses as occasion required. The driveway inside was on a level with the ground outside, except that the sill of the doorway extended about two inches above the ground. The second wagon stood about twenty to twenty-five feet from the door of the building. After the horses were started and when the front wheels were about two feet from the door, the deceased hollered “whoa,” and the horses immediately stopped, the deceased having hold of the tongue guiding the wagon into the driveway.

The defendant testified that when the wagon stopped he took a piece of pole and put it under the hub to start the wheel, to protect the rope, as there was a little rise in the ground at that point, and that the wheels sunk in some; that defendant directed deceased to take hold of the tongue and guide the wagon in, and when the front wheels were over the sill to step out from between the wagons; that when the front wheels were on the door sill the front end of the rack was about eighteen to twenty feet from the rear end of the rack on the first wagon, and when the hind wheels were over the sill there -was a space of about eight or nine feet between the rear end of the rack on the first wagon and the front end of the rack on the rear wagon; that deceased hollered “whoa”’ when the front wheels were about two feet from the sill, because he thought the wagon was going to hit the door; that the defendant gave the command for starting the horses; that the horses stopped promptly when commanded to stop; that the second wagon was drawn in before the first was unloaded, to protect the cabbage from rain; that the driveway in the building was level and hard and made of clay and gravel; that there were planks run on either side of the driveway six inches above the ground and posts standing upright held by timbers at the top extending from plate to plate.

*432Tbe evidence further shows that one O’Brien and defendant were behind the wagon, and when it was starred the second time they pushed in order to help the wagon in and over the sill and the wagon went straight in. The deceased was caught between the front end of the second wagon and the rear end of the first, his head being slightly crushed between the racks, being in a stooping position when found. The space on either side of the passageway was covered by a floor six inches above the driveway and was vacant. When the second wagon load was drawn in the tongue was permitted to pass under the first wagon in order to permit the loads to come close together. The cabbage racks were longer than the wagons, that on the first being twelve feet eight inches, and that on the second about fourteen feet. When deceased was found he was standing outside of the wagon stooping over, with the racks caught on each side of his head,, his hat being to the right of him and under the second wagon.

The evidence further shows that the injury occurred about 2 o’clock in the afternoon, and that there was sufficient light in the storage building where deceased was at work; that the team used in drawing in the load was gentle and was stopped when the hind wheels passed over the door sill so the wagon passed forward to the first load of its own momentum; that deceased, when asked to guide the tongue, said he could do it all right, and there was nothing to prevent him from stepping out from between the wagons when the hind wheels had passed over the sill; that the team drew the load in easily. It was not necessary to guide the tongue after the front wheels passed over the sill,, and when the pull stopped the tongue would drop down and run along straight under the first wagon.

It was admitted in the case that the defendant never elected to come under ch. 50, Laws of 1911.

The claim of negligence is that defendant failed to furnish a safe place t'o work, a safe way to do the work, or safe ap*433pliances, and failed to warn deceased of tbe dangers of tbe work.

Tbe court below directed a' verdict on tbe ground tbat tbe evidence showed no negligence and tbat tbe dangers, if any, were as apparent to deceased as to tbe defendant; tbat' tbe evidence showed nothing but an unfortunate accident, not resulting from any negligence on tbe part of tbe defendant.

We are fully convinced, after a careful examination of tbe evidence, tbat tbe trial judge was right in directing a verdict. Tbe operation of storing tbe cabbage was very simple; tbe team and wagons were suitable and proper for tbe work; tbe driveway was in good condition and tbe building properly constructed, with ample opportunity to guide tbe tongue and step aside when tbe wagon passed over tbe sill. Tbe driveway on tbe inside being practically on a level with tbe approach to tbe door on tbe outside, tbe only rise being a two-inch sill, tbe wagon when drawn in would naturally come to a stop very shortly after it passed over tbe sill after tbe team was stopped. There was nothing whatever in tbe operation difficult or dangerous. But it is claimed on tbe part of tbe appellant tbat the wagon should have been backed into tbe storage building and tbat there should have been a half bitch on tbe end of tbe wagon tongue.- Whether tbe work could have been done practically or efficiently by backing in (a point upon which there is no testimony) we need not consider, if the way in which the work was done was as safe as tbe nature of tbe employment would reasonably permit.

As to whether there was a half bitch on tbe end of tbe tongue tbe evidence is conflicting. But conceding for tbe moment' tbat tbe rope was attached at tbe evener pin, and no half bitch at tbe end of tbe tongue, still there was no danger so far as the evidence in tbe record shows. ’ There is no evidence of injury because of tbe tongue dropping down or because of want of a half bitch. Tbe deceased was instructed to let go of tbe tongue when tbe front wheels passed over tbe sill, and *434it is clear that no injury would-bare resulted from such operation; tbe tongue would have moved on under tbe first wagon until tbe wagon stopped. There is no evidence that tbe deceased was injured or caught between tbe racks while be bad bold of tbe tongue. It is also clear from tbe evidence, as tbe court below held, that tbe deceased was as familiar with tbe situation as tbe -defendant and needed no instructions respecting tbe work.

No negligence of tbe defendant having been shown, it is unnecessary to discuss tbe questions of assumption of risk and contributory negligence. We are convinced that tbe judgment is right and should be affirmed.-

*By the Court.*— Tbe judgment is affirmed.