#### Van Dinter, Respondent, vs. Worden-Allen Company, Appellant.

*October 27*

November *17, 1914.*

*Appeal: Law oí the case: Questions for jury: Master and servant: Unsafe hoisting device.*

1. The decision, on a former appeal, that upon the evidence at the first trial of the ease certain questions were for the jury, is the law of the case upon a second appeal after a second trial at which the evidence was substantially the same.

2. In an action for injuries sustained by a carpenter while assisting a crew of men to raise heavy joists to the third floor of a building by means of a hoisting device consisting of tackle attached to a so-called horse, the evidence is *held to*sustain a finding by the jury that the hoist was not (as required by see. 1636 — 81, Stats. 1911) so constructed, placed, and operated as to give proper protection to the life and limb of the plaintiff engaged in the performance of the work then being done.

Appeal from a judgment of the circuit court for Milwaukee county: Orbeh T. Williams, Circuit Judge.

*Affirmed.*

Action for personal injury. On July 6, 1910, the plaintiff, aged forty-four, and a carpenter by trade for over twenty-five years past, was assisting a crew of men in raising joists in a building being constructed by the defendant. The joists were raised by means of a hoisting device called a “horse” to the third floor, about forty-three feet from the ground, where they were set into long, heavy girders fourteen inches wide and twelve inches thick.

The hoisting device or horse was constructed of a plank twenty feet long, twelve inches wide, and three inches thick set edgewise, with two legs four inches wide and two inches thick spiked on about five and one-half or six feet from the front end. The legs were about four or five feet long, had a spread at the bottom of about three and one-half or four feet, 'and were connected by a cross brace about six or eight inches from the bottom. They were placed on two planks *580twenty feet long, twelve inches wide, and three inches thick, which projected eighteen to twenty-four inches in front of the last joist laid, and rested thereon at a point eight inches to one foot in front of the last joist. The planks were laid east and west or at right angles to the joists. The tail of the horse, or the rear end of the twenty-foot plank, was lashed to the fourth joist back from the last joist laid at a point about one or one and one-half feet from the end thereof. The joists were laid four feet apart. A two-sheave block was tied to the projecting end of the horse about two feet from the front. A single sheave block, which was tied to the joist being raised, was used below.

The hoist was operated as follows: A joist was tied to the single sheave block and was raised by men pulling on a rope which was tied to the single block, passed up through the double block, down through the single block, and again up through the double block, and from there down to the men. The joists being raised were sixteen feet long, twelve inches wide, and six inches thick, and weighed about 400 pounds. As each'joist was set in place the tail of the horse was un-lashed and the horse and the planks upon which it rested were moved forward to permit the raising of another joist.

At the time of the accident eight or ten men were pulling on the rope. They did not pull directly down, but ran to the south eighteen or twenty feet, or at right angles to the long plank of the horse, causing the weight to be thrown unequally on the legs and the rear end of one of the planks upon which the legs rested to tilt up and swing around, striking the plaintiff and causing him to fall. At the time he Avas struck he was standing on one of the girders into which the joists were set. There were no planks or boards laid cross-Avise upon the joists already set upon which the men could walk or stand. They had to walk upon the joists or girdei's. A number of joists had been set when plaintiff was called upon to assist, and the accident happened when they were hoisting the second joist.

*581The jury found (1) that the hoisting contrivance • which was in use when the .plaintiff was injured was not so constructed, placed, and operated as to give proper protection to the life and limb of the plaintiff engaged in the performance of the work then being done; (2) that the failure’ of the defendant to cause the hoist to be so constructed, placed, and operated as to give proper protection to the life and limb of a person engaged as the plaintiff was at the time of his injury was the proximate cause of plaintiff’s injury; (3) that the defendant, in the exercise of ordinary care, ought to have warned the plaintiff of the danger incident to the operation of the hoist in the manner in which it was being operated at the time of the plaintiff’s injury; (4) that such failure to warn the plaintiff was the proximate cause of his injury; (5) that the plaintiff was not guilty of any .want of ordinary care in placing the hoist which directly and proximately contributed to the cause of his injury; (G) that a person of plaintiff’s age, intelligence, and experience, in the exercise of ordinary care, ought not to have realized the danger from the operation of the hoist in the manner in which it was being operated before his injury, in time to have avoided the injury to himself; (7) that no want of ordinary care on the part of plaintiff proximately contributed to produce his injury; and (8) damages in the sum of $6,750.

’ From a judgment in favor of plaintiff the defendant appealed.

For the appellant there was a brief by *Flanders, Boltum, Fawsett*cf- *Bottum,*and oral argument by *E. II. Bottum.*

For the respondent there was a brief by *Jared Thompson, H. M. Sheets,*and *Herbert J. Piper,*and oral argument by *Mr. Piper*and *Mr. Sheets.*

YiNjk, J.

The evidence now presented is substantially the same as that before us upon the former appeal. See *Van Dinter v. Worden-Allen Co.*153 Wis. 533, 138 N. W. 1016, 142 N. W. 122. That being so, the qxiestions then de*582cided are tbe law of tbe case now. *Horn v. La Crosse B. Co.*131 Wis. 384, 111 N. W. 522, and cases cited; *Schenck v. Sterling E. & C. Co.*155 Wis. 219, 144 N. W. 290, and cases cited. It was held upon tbe first appeal that tbe questions of plaintiff’s -contributory .negligence and assumption of risk 'and of tbe proper construction and operation of tbe boist and of defendant’s duty to warn plaintiff were proper jury questions. Tbe jury bave now answered all of these questions favorably to tbe plaintiff. Upon tbe first trial there was a conflict between tbe answers to questions 5, 6, and I relating to plaintiff’s assumption of risk and defendant’s duty to warn, and hence tbe verdict would not support a judgment in favor of either party. Tbe present verdict is consistent throughout and sustains tbe judgment entered.

Upon tbe former appeal tbe defendant argued that tbe boist was so palpably unsafe to tbe knowledge of tbe plaintiff that be must be held as a matter of law to bave assumed the risk. It now argues that tbe boist was apparently so safe that there was no duty on its part to warn tbe plaintiff or to construct or operate it in any other manner, and that tbe accident occurred by reason of an unexpected operation of tbe boist, owing to tbe fact that tbe men ran to tbe south eighteen or twenty feet and so threw more weight onto tbe south leg of tbe boist and caused it to topple over; that bad tbe men stood under tbe boist and pulled directly down tbe hoist would bave remained firm. It may be conceded that bad tbe men so pulled tbe boist would bave remained as placed. But since it was more or less dangerous for men to stand under timbers weighing from 300 to 400 pounds while they were hoisted forty-three feet in height, and since it required from four to six men to boist such a load, tbe jury would be warranted in finding that a boist constructed to be so operated was not a safe one. They would also be justified in coming to tbe conclusion that it would be practically impossible for six or more men to take bold of a rope so as to pull directly *583down with a hoist constructed as this was; that it ought to have had a sheave block at the bottom substantially under the top one for the rope to pass through, so the men could stand out from under the timbers hoisted and still exert a perpendicular pull, and that, not having such a sheave block, defendant ought to have foreseen that the hoist would be likely to be operated as it was at the time of the accident. The jury no doubt reached the conclusion evidenced by the verdict from the fact that the hoist as constructed, in view of the load it had to carry, could not be safely operated and therefore did not measure up to the requirements of see. 1636— 81, Stats. 1911. This question was also practically decided on the former appeal, for it appeared in the evidence then as now that the men went to the south as stated, and it was then as now argued in defendant’s brief that it was the negligence of plaintiff’s fellow-servants and not the defendant’s negligence that was the proximate cause of the injury. But the court did not interfere with the- answer to the first question of the verdict then rendered which found the hoist unsafe. Upon the rehearing the correct dimensions of the planks upon which the hoist rested were considered by the court. So the question as to the safety of the hoist and its manner of operation is really foreclosed by the former decision. In any event we are satisfied that each finding of the jury is supported by the evidence.

Some exceptions are taken to the exclusion of evidence and to the charge to the jury. Both are without merit.

*By the Gourt.*— Judgment affirmed.