#### Schaut, Appellant, vs. Barkhausen Coal & Dock Company, Respondent.

*May 23*—

June *17, 1914.*

*Master and, servant: Injuries: Defective appliances: Unsafe place: Contributory negligence: Questions for jury.*

In an action for injuries to an employee who, while engaged in loading buckets of coal in the hold of a vessel, was struck by a piece of coal from a loaded bucket which unexpectedly dumped as it was being hoisted, it was a question for the jury, under the evidence, whether or not he was guilty of contributory negligence in stepping from the shelter of the deck out under the hatchway to resume his work before the bucket had in fact passed safely beyond the hatchway.

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

*Reversed.*

Action for personal injury.- Plaintiff, aged thirty-five, went *to*work for the defendant for the first time upon the day of his injury, loading buckets with coal in the hold of a vessel that was being unloaded at defendant’s dock. He was, however, familiar with the work he was doing. The bucket in question, which unexpectedly dumped, weighed about 900 pounds empty and about 1,800 pounds loaded. The boat lay on the north side of the dock headed west. On the dock there was a bridge that ran to the edge of the water, from the end of which there was a boom running out over the boat. A carriage running on the bridge and boom held the buckets, and when they reached the end of the boom they were lowered into the hold of the vessel through the hatch by means of a bumper that caused them to drop. When the bucket was filled it was raised to the end of the boom, where it struck a trip that loosened the carriage, and it then ran out on to the boom and bridge and was dumped on the dock where desired. The bail of the bucket was fastened to it behind the center so that there was much more weight in front than there was behind. It was kept from dumping by means of *627a dog, wbicb when released allowed it to dúrnp. Tbe bucket iu question bad been nicknamed “Tbe Devil” by tbe men on account of tbe frequency with wbicb it unexpectedly dumped, but this was unknown to plaintiff. Tbe batch on tbe boat being unloaded was tbirty-six feet long and eight feet wide running across tbe boat, or as it lay, from north to south. Tbe boat was forty-five feet beam, leaving a covered space in tbe bold at each end of tbe hatch; called tbe wing, of about five feet. When tbe buckets are loaded and ready for hoisting tbe men are expected to step back in under tbe deck, so as to be out of danger of coal falling therefrom as it is lifted to tbe boom and until it passes tbe combing of tbe batch. On tbe day in question tbe bucket called “Tbe Devil” was loaded, and as it was being hoisted it dumped and a piece of coal struck and injured tbe plaintiff. There is a sharp conflict in tbe evidence as to whether when tbe bucket dumped it bad passed- beyond the comb of tbe hatchway, and also as to whether plaintiff was in under the deck or out in tbe hatchway when be was struck. Some of tbe evidence of tbe plaintiff is to tbe effect that be was in under tbe deck slightly and that when tbe bucket dumped it was beyond tbe combing of tbe batch and coal was thrown backwards and struck him. Tbe evidence of tbe defense is to tbe effect that plaintiff was from two to three feet out in tbe .hatchway, having started to go to bis place of work to clean up coal in tbe wing, and that tbe bucket bad not passed the hatchway when it dumped. Tbe trial court rejected tbe evidence of tbe plaintiff that tbe coal was thrown backwards as being contrary to physical laws, and granted a nonsuit on tbe ground of plaintiff’s contributory negligence as a matter of law because be bad stepped out into tbe hatchway before tbe bucket bad safely passed from over it. The plaintiff appealed.

Eor tbe appellant there were briefs by *Kittell & Burlce,*attorneys, and *Victor I. Minaban,*of counsel, and oral argument by *J. A. Kittell.*

*628For the respondent there was a brief by *Martin, Martin <&*Martin, and oral argument by *P. H. Martin*and *Jeremiah Clifford.*

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 *629not 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.