#### Schmit, Respondent, vs. Frederickson and another, Appellants.1

*December 9, 1914*

January *12, 1915.*

*Master and, servant: Injury: 'Negligence of fellow-servant: Evidence.*

1. In an action for personal injuries alleged to have been caused by negligence of a fellow-servant in throwing or dropping one end of a timber which he and the plaintiff were unloading from a wagon, it is *held*that there is no evidence that the fellow-servant was negligent.

2. Negligence of a fellow-servant in such simple operations must affirmatively appear, and the jury cannot be permitted to assume there was negligence when the undisputed evidence is consistent with no negligence.

Appeal from a judgment of the circuit court for Dane county: E. Ray SteveNS, Circuit Judge.

*Reversed.*

This action was brought to recover for personal injuries. There was a verdict and judgment for plaintiff, and defendants appealed.

At the close of the evidence the defendants moved for a directed verdict, which was denied, and afterwards moved for a new trial, which was denied.

The plaintiff, together with Willie Knetchges and Pat Brady, were at the time of the injury in the employ of the defendants and engaged in unloading timber from a wagon onto a lumber pile, and the negligence complained of is that of a fellow-servant, Willie Knetchges. Counsel for respondent relies upon the evidence of plaintiff to prove negligence, which is as follows:

“When we got to the place where we should unload the timbers and I was back of the wagon, and pulled the timber back and tried to swing it around toward the pile then we should slide them down where they should pile it. Now I took two *427of them tbat way and we did slide them, the third timber the fellow he got up and said, Ret ns carry the timber’ — - *Q.*Now who do yon mean by 'the fellow?’ *A.*That Willie Enetchges. Yes, then I said, 'That’s no way to carry the. timber; that’s easier to slide them.’ And he took a hold on it under his arm like that (illustrating), and he walked over until he got half way by the other timber that was lying on the front, so that it balanced, and he just swung it around and throwed it in place there. That was the third. The fourth one, by the time they were leveling that up I took another and swung it right around, and he came and took a hold on it and I never thought anything by it, and when I pulled it off I had it just like this (illustrating), and just the same time I pulled it off he throwed it there and then I said to him, 'That ain’t not the way to do business because you could hurt a fellow.’ Then he said, 'Who is going to hurt you?’ Then I said, 'It won’t take much' once in a while to hurt a fellow by throwing timbers down.’ The same time I took another, and we did slide that over again and then the sixth timber, when I turned that around, he came up on the pile and he took a hold on it and I didn’t trust him no more,, and I said, 'Now if I would know that you would drop it, I would take no hold on it,’ and he said threé or four times, 'Take my word for it, I won’t drop it,’ and then I said 'All right,’ I took hold on it and just when I was pulling it off from the back of the wagon down he throwed it; I had the timber just to pull off, and at the same time he throwed it, and it gave me such a jerk that went right through my whole system and I kept on shaking and I am shaking today, and I had to go and lean up about four or five minutes against the glazing room. That was timbers eight by eight, twelve feet long, and was four green ones and they were good and heavy, and the rest of them was pretty dry. *Q.*Now, what was the fact, *Mr. Schmit,*with respect to there being a pile of dimension timbers right at the edge of the driveway, and right by the side of the wagon, when they were unloading ? *A.*Why, they got all different sized timbers there; now the long timbers they keep along the drive, and the shorter timbers they pile back of it. *Q.*Were there any long timbers piled close to the driveway ? *A.*Why yes, there were some alongside the driveway. *Q.*How high were they piled ? *A.*Oh, so far as I could see, about three *428feet, pretty close to three feet high. *Q.*State to the jury how wide this pile of timber was on top. *A.*I guess about three or four feet. *Q.*Now, at the time that Willie Knetch-ges took hold of this timber, that he let fall or threw at the time you were injured, state where he was standing. *A.*He stood right on top of the pile of the long timbers, and he throwed it down and I got injured. *Q.*Now state to the court and jury where you stood at the time the timber was let fall. *A.*I stood at the back of the wagon; had a hold on one end of the timber. After Knetchges threw the timber I stood there trembling and shaking. I said, ‘Now you did that, now you did hurt me.’ Then he said, ‘I didn’t know that did hurt.’ ”

On cross-examination the plaintiff testified:

*“Q.*And he took it at the other end and you took it at the rear end? *A.*Yes. *Q.*And yet you pulled it away down and turned it around? *A.*No; I took it from the wagon, turned it around and then I had it turned facing the pile where they should pile it. When I had it turned that way, here is the wagon (indicating), and after I had it turned that way, here is the wheel (indicating) so he stood on top of the pile. *Q.*The pile on the wagon ? *A.*On top of the pile of long timbers. *Q.*You turned the timber around to him? *A.*I turned it around to him and he took it under his arm like this (illustrating). I says, ‘Willie, are you going to throw it down?’ He says, ‘No, I won’t.’ I asked him a couple of times. I .said, ‘If I knew you were going to throw it, I wouldn’t touch it.’ He says, ‘Take my word for it, I won’t throw it.’ I says, ‘All right, I will take your word for it.’ *Q.*You weren’t looking at him to see him let go of it ? *A.*No, but I— *Q.*Wait a minute. Were you looking at Willie when he dropped it or threw it as you claim ? *A.*No, I wasn’t looking at him. I looked at the back end where to get a hold of it— *Q.*You were just hanging on to the other end of the timber ? A. I was trying to pull it off, and the same time when I had it like this to get it off (illustrating) he throwed his end.”

Plaintiff further testified:

*“Q.*How far did the timber fall? *A.*It fell about, say a foot, or maybe not quite a foot off from one of them long *429timbers. *Q.*Will you explain to tbe jury just wbat you. were doing tbat took your attention, took your eyes from Willie at tbe moment tbat be let tbis piece of timber fall ? *A.*Wben he bad tbe bold, wben be bad the timber under bis arm, why, I looked on tbe end here and just pulled it, wben I had it just to pull off, down it dropped there on tbe timbers where be stood on, and there is where I got tbe jarring of it, just wben I pulled it off. *Q.*He bad tbe timber under bis arm? *A.*Under bis arm. Mr. Bagley: How did you have tbe timber, under your arm, or in your band? A. No sir, I bad them like tbis (illustrating). Mr. Bagley: Just in your band? *A.*Just take them off. Cpurt: Tbat is, you were bolding your two bands off to your left side, grasping tbe timber ? *A.*Grásping tbe timber.”

Eor the appellants there was a brief by *Bagley & Beed,*and oral argument by *W.'B. Bagley.*

Eor tbe respondent there was a brief by *J. J. McManamy*and *Francis V. McManamy,*and oral argument by *J. J. Mc-Manamy.*

1

 This case was not printed in its regular order in 159 Wis. because of the pendency of a motion for rehearing, which was afterwards abandoned.

KerwiN, J.

Two questions are presented upon tbis appeal. (1) Whether tbe defendants were guilty of negligence j and (2) whether tbe plaintiff was guilty of contributory negligence.

After a careful examination of tbe record we are convinced tbat there is no proof of negligence. Tbe servants Brady and Nnetchges deny tbat tbe timber was thrown or tbe plaintiff injured in any manner. Tbe burden of proof .was upon the plaintiff to prove negligence. Tbe operation of unloading tbe timber was very simple. The timbers were 8x8 and twelve feet long. Tbe wagon was close to tbe lumber pile and tbe load about on a level with tbe 'lumber pile. Tbe plaintiff stood back of the wagon and swung, or assisted in swinging, 'the timbers so as to get tbe front end on tbe pile first, and with tbe assistance of Xnetchges and Brady they were placed on tbe pile. Tbe negligence complained of is tbat Knetchges threw or dropped tbe timber in such manner as to injure *430plaintiff. There is. no evidence that Enetchges threw or dropped the timber in a negligent manner. True, plaintiff testified that Enetchges threw or dropped it, but he admits that he was not looking when the timber dropped, and that his knowledge as to whether it was thrown or dropped was that he felt it. The evidence is consistent with the idea that the timber dropped while Enetchges was in the exercise of ordinary care in handling the front end of it. Negligence is never to be presumed. There must be some proof of it. The drop was slight, only about a foot. At the time it occurred Enetchges was holding the front end, had it under his arm. The plaintiff was manipulating the rear end, “was trying to pull it off.”

There is no evidence that Enetchges was not exercising ordinary care in managing the front end, unless it can be said that he negligently dropped his end, and there is no evidence of this. The mere fact that the end of the timber dropped a foot does not alone constitute negligence. Proof of negligence of a fellow-servant in such simple operations must affirmatively appear. The jury cannot be permitted to assume that there was negligence when the undisputed evidence is consistent with no negligence. *Johnson v. Berwind F. Co.*154 Wis. 1, 141 N. W. 1018; *Salus v. G. N. R. Co.*151 Wis. 546, 141 N. W. 1070.

We are convinced that there was no evidence of negligence of defendants. This being so, we need, not consider the question of contributory negligence.

*By the Oourt.*— The judgment is reversed, and the cause remanded with directions to dismiss the complaint.