#### Gussart, Respondent, vs. Greenleaf Stone Company, Appellant.

*January 10*

January *28, 1908.*

*Master and, servant: Injury to servant: Contributory negligence: Questions lor jury: Duty of master as to warning servant: Delegation of duty to warn to foreman: Fellow-servants: Appeal and error: Harmless errors: Trial: Instructions to jury.*

1. In an action by a servant lor personal injuries, under tbe evidence, stated in tbe opinion, it is *held*that it was for tbe jury to say whether tbe danger to wbicb tbe servant was exposed and wbicb occasioned tbe injury was not open and apparent to a man of ordinary intelligence wbo bad no warning and no experience in tbe kind of work in wbicb be was engaged.

2. Tbe duty to instruct or warn a servant in cases where such warning or instruction is required is a duty of tbe master, and for omission of such duty be cannot shield himself merely because *419he may have delegated that duty to a fellow-servant of the injured employee.

S. While, in summing up the evidence relative to each separate question of a special verdict, the use hy the court of the expression “the plaintiff claims” or “the defendant claims” is not approved, its use cannot ordinarily be considered prejudicial error.

4. Where, in an action for personal injuries, in the charge to the jury the court gave correctly the rule as to the duty of plaintiff, after the injury, to reduce the injury by proper care and attention to and medical treatment of the injured member, and thereafter, in response to interruptions of counsel on both sides by oral suggestions, gave partial and incomplete statements of the rule, such conduct does not constitute prejudicial error.

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

*Affirmed.*

The appeal is from a judgment rendered in an action for negligent injury to an employee.

*Charles A. Vilas,*for the appellant.

Eor the respondent there was a brief by *Wigrrum, Martin & Martin,*and oral argument by *P. H. Martin.*

Among other references cited upon the part of the appellant were the following: *Both v. S. E. Barrett Mfg. Co.*96 Wis. 615, 71 N. W. 1034; *Holt v. C., M. & St. P. B. Co.*94 Wis. 596, 69 1ST. W. 352; *Schultz v. Q., M. '& St. P. B. Co.*116 Wis. 31, 92 N. W. 377; *McMillan v. Spider Lake S. M. '& L. Co.*115 Wis. 332, 91 N. W. 979; *Belyea v. Tomar hawk P. '& P. Co.*110 Wis. 307, 85 N. W. 960; *Henche v. Ellis,*110 Wis. 532, 86 N. W. 171; *Showalter v. Fairbanks, M. & Co'.*88 Wis. 376, 60 N. W. 2'57; *Larsson v. McClure,*95 Wis. 533, 70 N. W. 662*■, Nash v. C„ M. & St. P. B. Co.*95 Wis. 327, 70 N. W. 293; *S'ladky v. Marinette L. Co.*107 Wis. 250, 83 N. W. 514; *Bigelow v. Danielson,*102 Wis. 470, 78 1ST. W. 599; *Corrigan v. WestDiv. S. Co.*133 Wis. 77, 113 N. W. 441; *Peschel v. C., M. & St. P. B. Co.*62 Wis. 338, 21 N. W. 269; *Divyer v. Am. Exp. Co.*82 Wis. 307, 52 N. W. 304; *Portanee v. Lehigh Val. C. Co.*101 *420Wis. 514, 77 N. W. 875; *Dahlke v. III. 3. Oo.*100 Wis. 431, 76 N. W. 362; *Qereg v. Milwaukee Gas L. Co.*128 Wis. 35, 107 N. W. 289; *Ham-ami v. Milwaukee B. Co.*127 Wis. 550, 106 N. W. 1081; *Van de Bogart v. Marinette & M. P. Co.*127 Wis. 104, 106 N. W. 805; *Banderol v. Wis. Cent. B. Co.*133 Wis. 249, 113 N. W. 738.

Among other references cited upon tbe part of tbe respondent were,tbe following: *Horn v. La Crosse B. Co'.*123 Wis. 399, 101 N. W. 935; *Baumann v. C. Beiss O. Co.*118 Wis. 330, 95 N. W. 139; *Klochinski v. Shores L. Co.*93 Wis. 417, 67 N. W. 934; *Schamper v.*Ullrich, 131 Wis. 524, 111 N. W. 691; *Gill v.*Homrighausen, 79 Wis. 634, 48 N. W. 862; *Thompson v. Hdward P. Allis Co.*89 Wis. 523, '62 N. W. 527; *Chopin v. Badger P. Co.*83 Wis. 192, 53 N. W. 452; *Bevolinski v. Adams C. Co.*118 Wis. 324, 95 N. W. 122.

TimliN, J.

Tbe verdict and judgment for plaintiff rest upon tbe failure of defendant to warn or instruct tbe plaintiff relative to tbe dangers attendant upon tbe work of stopping cars under tbe following circumstances: Tbe defendant is operating a stone quarry and manufacturing and skipping lime and crushed stone at Greenleaf, Brown county, Wisconsin. Tbe crushed stone is loaded on railroad cars by spouting tbe same from pockets above tbe car. This makes it necessary to stop tbe car under tbe pocket. Tbe spur track leading under these pockets begins at tbe switch and terminates at a ledge of rock high enough to prevent further progress of track or cars thereon. Erom this ledge back to tbe switch there is considerable descent, so that ears are hauled up to tbe ledge on tbe spur track by a team of horses, and upon detaching the horses tbe car immediately starts back down tbe spur track, passing under tbe pockets toward tbe switch. It is necessary to enable tbe horses to draw tbe car up that tbe brakes b© loose. It is necessary, in order *421to control tbe car going back by its own momentum, that tbe brakes be tightened, and a man is on top of tbe car for that purpose at tbe time tbe team is detached. But lest tbe car so gain in momentum while this man is taking up tbe slack of tbe brake chain that be would be unable to control it, in order to stop' it under tbe pocket another man with an iron bar called a crowbar or pinch bar is to bold tbe car in tbe manner hereinafter described until tbe brakeman acquires sufficient control of it by means of bis brake. A crowbar or a pinch bar is an iron bar four or four and one-half feet long, round except for a foot or more at tbe lower end, which is square, and about an inch or an inch and a half in diameter. Tbe lower square end of tbe bar is cut off diagonally so as to form a pointed wedge with one of tbe square surfaces and an obtuse angle with tbe opposite square surface. Tbe last point of contact between tbe diagonal cut-off and tbe square surface is called tbe heel, and tbe former point of contact is called tbe point, and by inserting tbe point between tbe car wheel and tbe rail on which tbe wheel runs, close to tbe flange, and using tbe heel as a fulcrum and bearing down upon tbe bar, considerable power can be exerted toward stopping tbe car, depending, of course, upon the relative distance from tbe heel to tbe point and also from tbe heel to tbe handle end or place where the power is applied. Tbe distance from tbe point to tbe heel along tbe square surface of tbe bar would not exceed two inches, and it must be apparent that if tbe wheel is not immediately stopped, but follows on tbe bar to a place more than two inches from tbe point, tbe conditions under which power is attempted to be applied are suddenly reversed, and tbe bar will be swiftly thrown downward with all tbe weight of tbe car which that particular wheel, elevated by tbe thickness of tbe bar, carries. Tbe top surface of tbe rail is not level, but slightly rounded, nor is tbe periphery of tbe car wheel flat, but is larger next tbe flange at tbe inside of tbe rail and smaller at *422tbe outside. To use tbe pincb bar effectively in order to stop tbe car it is necessary to insert tbe point of tbe bar properly on tbe surface of tbe rail near tbe flange on tbe car wheel with tbe heel downward, and, using tbe heel as a fulcrum, press down on the bar, or else merely block tbe wheel by inserting tbe point of tbe bar in tbe manner described without pressing down. Tbe freight car in question was a gondola of about 50,000 pounds capacity. Tbe utmost blocking effect of the bar would be that of a wedge-shaped piece of iron two inches long and one and one-half inches thick at tbe thickest part of tbe wedge. Tbe effectiveness as a block could of course be increased by skilful handling of tbe bar as a lever.

Tbe testimony of tbe plaintiff is contradicted on very material points by every witness present at tbe time of tbe injury and is quite uncertain and confused with reference to tbe manner of bis injury. We are brought to face with tbe defendant’s motion to strike out tbe answer to tbe third question as contrary to tbe uncontradicted evidence, and to answer that question in tbe affirmative and grant judgment to tbe defendant upon tbe verdict so amended. Tbe second question inquired whether stopping tbe car at tbe place in question when in motion and by means of a pinch bar was an act dangerous to tbe party doing it, and this tbe jury very properly answered in the affirmative. Tbe third question and answer were as follows: “If your answer to tbe second question should be ‘Yes,’ then answer this: Was such danger one that was open and apparent *to*a man of ordinary intelligence without warning or experience? *A.*No.”

Tbe evidence relating to tbe manner of injury, in its aspect most favorable to tbe plaintiff, showed that'the plaintiff was a man thirty-seven years old employed by tbe defendant as a common laborer, and bad no experience in stopping cars, and that on or about August 26, 1905, Thomas Wakeley, tbe foreman in charge for tbe defendant, early in tbe afternoon bad tbe plaintiff called down from where be was working in *423the quarry breaking stone and told plaintiff to quit work there and to come and stop cans. The plaintiff testified:

> “When he told me to stop the car it Was west about two and one-half rods of the point where I got hurt. It was drawn up toward the east. Mr. Wakeley told me to stop the car with what they call a ‘crowbar,’ about four or a little better— four and one-half perhaps — feet long. There was a slant in the bottom on the underside, a kind of heel. The upper surface was straight, and was slanted off at the heel. . . . I picked up the bar, and when the car came up to me I tried to stop it with the bar. They pulled the car up with a team of horses to the east of me. *Q.*Did it pass you as they pulled it up with the team of horses ? *A.*Yes; it did at that time, yes. When it passed me going east I was standing alongside the track within ten or fifteen feet of Wakeley at the point where I picked up the bar on the north side of the track. Emil Sebulski drove the team that pulled the car east. I waited until the car went up and it came back and I tried to stop it. The car went about two rods east, I should judge, and I remained standing with the bar in my hand. They unhooked the team, and the car started back as soon as the team was unhooked. The horses pulled the car up as far as they could walk. I don’t know whether the end of the car bunted, against anything. The car started back from itself. The grade is toward the west — toward the depot, and as the car came back west I tried to stop1 the ear with the bar in under at the wheel on the rail — the west wheel; that is, the first wheel. I was still on the north side of the track. I went on the rail in under the wheel the best way I knew how. I wasn’t told how. I stood on the north side of the track, and tried to stop the car by putting the bar under the wheel; not crossways, but put the foot under the wheel or point of the bar. It did not stop the first wheel, but the car went over the bar. It would not hold it. I held it but it went over the bar; that- is, I couldn’t stop' the car. The wheel raised off the rail. After that, when the second wheel catched it, it catched me. It went through and the second wheel catched it, and I couldn’t hold it. I tried to. stop it again, and I couldn’t hold it, and it catched me, and the bar snapped down and turned in my hand. As soon as the wheel touched, it, it *424turned in my Rand, and I couldn’t Rold it and sRut down. . . . TRe car went over it and sRut down and bent tRe bar; the bar carrying tRe weigRt of tRe first wheel when it went over it. WRen it snapped out of my Rands it went down kind of quick and catcRed me across my toes. My right foot was alongside of tRe track on the ties on the crushed rock and sand that was down there. My foot was about eight or ten inches from the rail. I didn’t measure it. TRe bar Reid *me*there, and I couldn’t pull loose, and was fastened down pretty tight. ... I was unable to loosen myself, and the teamster came around and helped me out. The car stopped there, and the second wheel held the bar. Erank Summers helped the teamster get me out. I Rad never done that work before, nor seen it done, and knew nothing about Row to do it. I did not know Row to Randle that bar so as to stop that car. Wakeley didn’t tell me anything about how I should do the work. No one ever gave me any instruction. I didn’t know there was any danger in doing it. WRen I tried to stop it the car was going about as fast as a common gait — walk. Erom the ledge of the rock east of me to the point where I was hurt was about two and one-half rods. I didn’t measure it. The car was not loaded. . . . When the car stopped and the horses were unhitched and it started back, the nearest end of the car was probably fifteen or sixteen feet from me. I didn’t walk toward the car, but stood still, and when it reached me it was going about as fast as a common gait— walk.”

The writer and Mr. Justice MaRshawl are of opinion that the order to stop the car, as testified to by plaintiff, could not properly be interpreted as an order to stop1 the car while in considerable motion and after it had attained on the down grade a momentum such as shown, and that the danger of so attempting to stop the car was so obvious and apparent that the answer to the third question of the special verdict should have been changed from “No” to “Yes.” But the decision of this court is otherwise, and it must therefore be held upon the evidence above quoted and upon the facts above stated that it was for the jury to say, as they did in their *425answer to the third question, that such danger was not open and apparent to a man of ordinary intelligence who had no warning and no experience in this kind of work.

It is next argued that the failure to warn or instruct the plaintiff with reference to the danger of stopping cars was the negligence of the foreman, Thomas Wakeley, hence the negligence of a fellow-servant. But the duty to instruct or warn an employee in cases where such warning is required is a duty of the master, and for the omission of such duty he cannot shield himself merely because he may have delegated that duty to a fellow-servant of the injured employee. *Horn v. La Crosse B. Co.*123 Wis. 399, 101 N. W. 935; *Klochinski v. Shores L. Co.*93 Wis. 417, 67 N. W. 934.

It is further contended that the trial court erred in its charge to the jury because in summing up the evidence to the jury relative to each question separately he made use of the expression “the plaintiff claims” or “the defendant claims.” This form of presentation is -not approved, hut its use cannot ordinarily he considered prejudicial error. *Banderob*v. Wis. *Cent. R. Co.*133 Wis. 249, 113 N. W. 738.

It is argued that the trial court erred in its instructions to the jury relative to the duty of the plaintiff, after the injury, to reduce the injurious consequences flowing from such injury by proper care and attention to and medical treatment of the injured member. The trial court first gave the rule correctly, but, in response to an interruption by plaintiff’s counsel at this point, made an oral statement which was an inadequate and incomplete presentation of this rule. The defendant’s counsel then interrupted with another suggestion which the court then gave to the jury, but which was also tentative. We have then a case where the jury were given the rule correctly, and thereafter, in response to interruptions of counsel by oral suggestion, the court gave partial and imperfect statements of the rule of law. We do not consider this prejudicial or reversible error.

*426No other questions seem to require notice, and the judgment must be affirmed.

*By the Court.*— The judgment of the circuit court is affirmed.

Bashfoed, J., took no part.