#### Fonder, Respondent, vs. General Construction Company, Appellant.

*February 22*—

April *5, 1911.*

*Master and servant: Negligent operation of derrick: Injury to serv-*' *ant: Statutory duty of master: Viee-principal: Assumption of risk: Qtiestions for jury: Proximate cause: Special verdict: Construction: Consistency: Evidence: Changes made after accident.*

1. In an action by a servant for injuries sustained in jumping from a building to escape being struck by a falling derrick, tbe first question and its answer in the special verdict were: “Was the face derrick which was being used and operated at the time the plaintiff was injured not so constructed and operated as to give proper protection to the life and limb of the plaintiff, because of its being on wheels and not so fastened as to prevent its moving on its wheels and tipping over? *A.*Yes.” *Held,*that in submitting such question the court evidently endeavored to follow the statute — sec. 1636 — 81, Stats. (Supp. 1906: Laws of 1901, ch. 257, sec. 1), — and that the answer was a finding that the derrick was not properly placed and operated, because of being on wheels, etc.

2. If there was any vagueness or ambiguity in such question, its meaning was made plain by the charge, which directed the jury to answer “Yes” if they found the derrick was *not*properly placed and operated by reason of the facts recited therein.

S. Such question was not objectionable as covering more than one controverted issue, since the word “constructed,” as used therein, manifestly refers to the *placing*of the derrick, not to its physical construction.

*24. The answer to such first question is not inconsistent with a finding, by answer to the fifth question, that the derrick was *constructed,*(clearly referring to its physical construction) in the way such derricks are usually constructed for work of the kind then being done, by persons of ordinary care and experience in like business; and both are consistent with a further finding, by answer to the sixth question, that such derrick was not *placed and operated*in the manner usually employed, under like circumstances, by persons of ordinary care and experience in like business.

5. Whether or not, under said sec. 1636 — 81, the defendant was charged with a greater duty than the exercise of ordinary care, need not be decided in this case, since a want of ordinary care was found by the answer to the sixth question.

6. The duty of the master under said statute, as to the appliances therein mentioned, is not delegable, but whoever performs it is a vice-principal for whose default he is liable.

7. Upon the evidence in this case it cannot be said as matter of law that plaintiff was charged with knowledge of the danger arising from the fact that the derrick in use was on wheels and not so blocked or otherwise fastened as to prevent it from moving from its position while being operated.

.8. A finding that the defects mentioned in the first question were a proximate cause of plaintiff’s injury is not inconsistent with a finding that a want of ordinary care in fastening the timber which was being lifted into place when the derrick tipped over was also a proximate cause of the injury, as the slipping of the rope on the timber would not have caused the injury had the derrick not tipped over.

■9. Evidence that after plaintiff’s injury a change was made, so that instead of standing close to the derrick the men operating the cranks in doing the hoisting occupied a position some sixty feet away, was admissible, not for the purpose of showing negligence on the part of the defendant, but to show that it was practicable to so place the men that they would be out of danger.

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

*Affirmed.*

Action to recover for personal injuries alleged to have been sustained through the negligence of the defendant. The defendant at the time of the injury was constructing a courthouse in the city of Green Bay. The walls had been carried up about-twelve feet, and upon them a stiff-leg derrick was *3being constructed. Tbe derrick when completed was to consist of two foundation pieces about ten inches square, called sleepers, fastened together at one end and spreading out at the other end in a Y shape from the point of fastening. From the point of fastening, a timber twelve to fourteen inches square was placed in a perpendicular position at right angles to the sleepers and known as the mast, and from the top of this mast two timbers known as stiff legs, and about the same size as the mast, extended to the ends of the sleepers to hold the mast in position. At the time of the injury the sleepers and mast were in position and one of the stiff legs was being lifted by a face derrick resting upon a platform of planks, which planks rested upon the sleepers and the wall. The face derrick was a small movable derrick and consisted of a foundation piece, or sill, made of a single piece of timber five inches square and eight feet long, in which were set two small wheels turning the long way of the sill and extending two inches below the bottom of the sill, for the purpose of moving the derrick. From the top of the sill and at a point nearly above each wheel two side pieces about five inches square extended up to a point where they were fastened to a cross piece, the upper ends being about three feet apart and the lower ends farther apart at the sill, the top of these two side pieces being the top of the face derrick, but from this extended the mast or pole, which was a permanent part of the derrick, making it about twenty feet high. There was a pulley near the top' of the derrick, and a spool or drum was fastened to the side pieces some three feet from the ground, with cranks or handles at either end for turning it, which when turned by the men wound the rope around the drum and lifted the object desired to be elevated.

The plaintiff at the time of the injury was engaged in turning one of the cranks in lifting the stiff leg, the rope having been wound several times around the stiff leg near the middle of it and tied in a knot. The derrick was held in nearly a perpendicular position, leaning a little toward the *4load it was lifting and beld by guy lines. Just as tbe stiff leg bad been lifted to tbe desired point and was banging at an angle of about forty-five degrees and in position to place tbe eyelet or “gooseneck” in tbe casting at its upper end down over tbe sbank or pin in tbe top of tbe mast, and tbe lower end .about to enter its place in tbe sleeper, tbe derrick moved and tipped over, and plaintiff, in fear of being struck by tbe falling derrick and attachments, jumped to tbe ground and was injured.

Tbe negligence alleged in tbe complaint is tbat tbe derrick “was defectively constructed and unsafe, unsuitable, and improper, in tbat it stood on wheels which made it unstable; tbat it was not so constructed, placed, and operated as to give pr*oper protection to tbe life and limb of plaintiff, because it was in no way fastened to such platform or anything else so as to prevent its base from ‘running on its wheels from tbe place it stood and causing such derrick to fall; tbat while said plaintiff was so operating such derrick and hoisting said timber above bis bead tbe said derrick, because of its defective, unsafe, unsuitable, and improper construction, and being so improperly constructed, placed, and operated, commenced to fall, together with such timber, towards and upon plaintiff; tbat said plaintiff bad no other way of escape but by jumping off said platform to tbe ground below, which be did in time to escape being struck.”

Tbe answer denies generally tbe allegations of tbe complaint and avers tbat tbe negligence, if any, was *that*of fellow-servants of plaintiff, and tbat plaintiff assumed tbe risk and was guilty of contributory negligence. Motions for non-suit and directed verdict for defendant were made and denied ; and tbe following verdict was returned by tbe jury:

“(1) Was tbe face derrick which was being used and operated at tbe time tbe plaintiff was injured not so constructed and operated as to give proper protection to tbe life and limb of tbe plaintiff, because of its being on wheels and not so fastened as to prevent its moving .on its wheels and tipping over ? *A.*Yes.

*5“(2) If you answer tbe first question 'Yes/ then answer tbis: Was tbe use of said derrick in that condition a proximate cause of tbe plaintiff’s injury? *A.*Yes.

“(.3) Did tbe plaintiff, at tbe time be was working at tbe derrick, know and comprehend tbe danger from using said ■derrick in the condition in which it was then ? A. No.

“(4) If , your answer to tbe third question should be ‘No,’ then answer tbis: Ought- tbe plaintiff, in the exercise of ordinary care, to have discovered and appreciated such danger before the accident? *A.*No.

“(5) Was tbe face derrick used at tbe time of tbe accident ■constructed in tbe way -such derricks are usually constructed for work of tbe kind then being done, by persons of ordinary care and experience in like business ? *A.*Yes.

“(6) Was tbe face derrick used at tbe time of tbe accident placed and operated in tbe manner usually employed, under like circumstances, by persons of ordinary care and experience in like business? *A.*No.

“(7) Were there blocks under tbe face derrick at tbe time of tbe accident ? *A.*No.

“(8) Was there any want of ordinary care in tbe manner in which tbe rope was fastened to tbe stiff leg? *A.*Yes.

“(9) If your answer to tbe eighth question should be ‘Yes,’ then answer tbis: Was such want of ordinary care a proximate cause of tbe plaintiff’s injury? *A.*Yes.

“(.10) Ought a man of ordinary intelligence and prudence, in McCarthy’s position, to have reasonably anticipated that there was danger of’the face derrick on which tbe plaintiff was working tipping over, so as to injure those working about it? *A.*Yes.

“(11) What amount of money will compensate tbe plaintiff for bis injury? *A.*$2,150.

“(12) Did any want of ordinary care on tbe part of tbe plaintiff contribute proximately to tbe injury? *A.*No.”

Plaintiff moved for judgment on tbe verdict, and tbe defendant made tbe usual motions for judgment notwithstanding tbe verdict, to change tbe answers in tbe special verdict, for judgment on tbe verdict as so changed, and for a new trial, which motions were denied and judgment entered in favor of tbe plaintiff on tbe verdict, from which tbis appeal was taken.

*6For'tbe appellant there was a brief *lay Sheridan &*Evans, and oral argument by *W. L. Evans.*

They cited, among other authorities, *Strehlau v. John Schroeder L. Go.*142 Wis. *215; Walters v. George A. Fuller Go.*74 App. Div. 388, 77 N. T. Supp. 681; *Glarlc v. Biter-Gonley Go.*39 App. Div. 598, 57 N. T. Supp-. 755; *Watson v. N. Y. G. Go.*127 App. Div. 134, 111 N. T. Supp. 277; *Pettersen v. Eahljen’s Am. G. Go.*127 App. Div. 32, 111 N. Y; Supp. 329; *McQueen v. D., L. & W. B. Go.*102 App. Div. 195, 92 N. Y. Supp. 585; *Govit v. Tucker E. G. Go.*137 App. Div. 923, 120 N. Y. Supp. 870; *Buckley v. Beinhauer,*136 App. Div. 540, 121 N. Y. Supp. 180; *West v. Bayfield M. Go.*144 Wis. 106, 128 N. W. 992; *Wiside v. MonteUo G. Co.*Ill Wis. 443; *Ear maim v. Milwaukee B. Go.*127 Wis. 550; *Peschel v. O., M. & St. P. B. Go.*62 Wis. 338, 349; *Eoveland v. Nat. B.*Works, 134 Wis. 342, 348; *Dougherty v. Milliken,*163 N. Y. 527, 57 N. E. 757; *Vogel v. American B. Go.*180 N. Y. 373, 70 L. E. A. 725.

For the respondent there was a brief by *Kaftan & Reynolds,,*attorneys, and *P. E.*Marlin, of counsel, and oral argument by *Mr. Marlin.*

KeewiN, J.

By the first, second, third, fourth, eleventh, and twelfth findings in the special verdict the jury found in substance that the face *derrick*in question was not placed and operated so as to give proper protection to the life and limb of plaintiff, because of its being on wheels and not so fastened as to prevent its moving on its wheels and tipping over, and that such was the proximate cause of his injury; that plaintiff did not know nor comprehend the danger from using the derrick in the condition it was in, and that he ought not, in the *exercise of*ordinary care, *to*have discovered and appreciated such danger; that he was not guilty of contributory negligence; and that he sustained $2,150 damages.

These findings, if consistent with other answers to ques*7tions in tbe special verdict, and supported by tbe evidence, we tbink are sufficient to support tbe judgment. It is contended, however, by counsel for appellant that tbe answer to tbe first question of tbe special verdict is a finding of proper construction and operation of tbe face derrick, relieving tbe defendant from negligence, and, if not such finding, tbe question is so vague, obscure, and misleading tbat its answer is not sufficient to support a judgment. It is further insisted that tbe first question is faulty in that it covers more than one issue and that its answer is inconsistent with tbe answers to tbe fifth and sixth questions, and that if tbe answer to tbe first question is a finding of improper construction and operation it is not supported by tbe evidence.

It is plain from tbe form of tbe first question that tbe court endeavored to follow tbe statute, sec. 1636 — 81, Stats. (Supp. 1906: Laws of 1901, cb. 257, sec. 1), in submitting it to tbe jury. And we tbink tbe answer is a finding that tbe face derrick was not properly placed and operated because of being on wheels and not so fastened as to prevent its moving and tipping over. If there was any vagueness or ambiguity in tbe question its meaning was made plain in tbe charge and tbe jury could not have misunderstood it.

It is further insisted that tbe first question, in asking as to construction and operation of tbe face derrick, covers more than one controverted issue, and, besides, that the answer to this question is inconsistent with tbe answers to tbe fifth and sixth questions. Tbe first question, when viewed in tbe light of tbe statute (sec. 1636 — 81) and tbe charge, was not objectionable as covering more than one controverted issue. Tbe word “constructed” in this question manifestly refers to tbe placing of tbe derrick, not to tbe physical construction of tbe derrick itself. This seems clear from a reading of tbe whole question. Tbe question asks, “Was” tbe derrick “not so constructed and operated as to give proper protection to tbe life and limb of tbe plaintiff, *because of Us being on wheels**8*and not so fastened as to prevent its moving on its wheels and tipping over?”*Nor can tlie first question be said to be inconsistent witb tlie fifth question, which latter question clearly relates to the physical construction of the derrick itself, regardless of the placing or operation of it; and the sixth question is perfectly consistent with the first and fifth questions, since it finds that the derrick was not placed and operated in the manner usually employed by persons of ordinary care and experience in like business.

The argument of counsel for appellant is that the only duty with which the defendant was charged was to exercise ordinary care, and that the defendant is not charged with the negligence of a fellow-servant. The statute provides:

> “A person employing or directing another to perform labor of any kind in the erection, repairing, altering or painting of a house, building or structure shall not furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders or other mechanical contrivances, which are unsafe, unsuitable or improper, and which are not so constructed, placed and operated as to give proper protection to the life and limb of a person so employed or engaged. . . Sec. 163G — 81, Stats. (Laws of 1901, ch. 251, sec. 1).

Counsel for appellant contend that the validity of the answer to the first question of the special verdict depends upon the answers to the fifth and sixth questions, because they say that the defendant is not charged with the duty of exercising any greater degree of care than that exercised by men of ordinary care and experience under similar circumstances. And upon this ground it is argued that the answer to the first question is inconsistent with the answer to the fifth question. .Whether the defendant was chargeable with the exercise of more than ordinary care we need not and do not decide in this case, because under the findings of the jury it is unnecessary to do so. The jury found that the statute was violated, that such violation was the proximate cause of the plaintiff’s in*9jury, tbat tbe plaintiff did not assume tbe risk, and was not guilty of contributory negligence. No errors are claimed in tbe charge on these questions. Question No. 1 has reference to tbe placing or operation of tbe derrick, and question No. 5 covers only original construction, and both may stand together. If in answer to question No. 6 tbe jury bad found tbat tbe placing and operating was with ordinary care, then it would have been necessary to decide whether ordinary care satisfies tbe statute, but the jury negatived ordinary care in tbe placing and operation of tbe derrick. Tbe answers to questions 8 and 9 also negative ordinary care. So, whether tbe duty be absolute or simply to exercise ordinary care is immaterial; on either basis the verdict is for tbe plaintiff and sustains the judgment. Tbe duty of tbe master under this statute to construct and place tbe derrick was nondelegable, and whoever performs this duty for tbe master is a vice-principal and not a fellow-servant with other servants in tbe employ of tbe master. *Quackenbush v.*Wis. *& M. R. Co.*62 Wis. 411, 22 N. W. 519; *Herrell v. C., M. & St. P. R. Co.*114 Wis. 605, 90 N. W. 1071; *Sharon v. Winnebago F. Mfg. Co.*141 Wis. 185, 124 N. W. 299; *Smith v. Milwaukee B. & T. Exch.*91 Wis. 360, 64 N. W. 1041; *Stafford v. Chippewa Valley E. R. Co.*110 Wis. 331, 359, 85 N. W. 1036; *Van de Bogart v. Marinette & M. P. Co.*132 Wis. 367, 112 N. W. 443; *Hoffman v. Rib Lake L. Co.*136 Wis. 388, 117 N. W. 789; *Miller v. Kimberly & C. Co.*137 Wis. 138, 118 N. W. 536; *Union P. R. Co. v.*McDonald, 152 U. S. 262, 14 Sup. Ct. 619; *Davidson v. Flour City O. I. Works,*107 Minn. 17, 119 N. W. 483; *Sommer v. Garbon Hill C. Co.*89 Fed. 54; *Johnson v. Far West L. Co.*47 Wash. 492, 92 Pac. 274; *Espenlaub v. Ellis,*34 Ind. App. 163, 72 N. E. 527; *Beresford v. American C. Co.*124 Iowa, 34, 98 N. W. 902; *Walters v. George A. Fuller Co.*74 App. Div. 388, 77 N. Y. Supp. 684.

It is also contended tbat if tbe first question is a finding *10that tbe face derrick was so placed and operated as not ti> give proper protection, because of its being on wheels and not so fastened as to prevent its moving and tipping over, it is-not supported by the evidence. We shall not discuss the evidence upon this point at any length. After a careful examination of the record we find sufficient evidence to support the finding. The evidence is ample to support a finding that the derrick fell because of improper placing.

. The Burden of the argument of counsel for appellant upon this proposition is (1) that the derrick was properly constructed, and (2) that the falling was caused by the negligence of a fellow-servant, if any negligence there was, for which the defendant is not liable. As before observed, no claim is made by plaintiff that the physical construction of the face derrick itself was not proper. But there is evidence sufficient to support the verdict that it was not securely placed and fastened so as to prevent it from falling. The point that' the falling was caused by the negligence of a fellow-servant in not properly placing it cannot avail the defendant, as we-have seen. The plaintiff was ordered to work at the point of danger by the defendant’s foreman, who- had full charge of' the work, and the jury found upon sufficient evidence that the plaintiff was not guilty of contributory negligence. It is-insisted that the answers of the jury to the third and sixth questions are not supported by the evidence.

Respecting the third question it does not appear from the evidence that it can be said as matter of law, from his experience and knowledge of the operation of such derricks,, that plaintiff should be charged with knowledge of the danger. The facts found by the seventh and eighth findings as to proximate cause, in addition to the proximate cause found by the first and second questions of the special verdict, do not affect the judgment. The first and second findings of the jury, being supported by the evidence, cannot be said to be inconsistent with the facts found by the seventh and eighth *11questions. It seems obvious that had the derrick been properly placed so that it could not have fallen over, the slipping of the rope upon the stiff leg would not have caused the injury, and this fact, we think, the verdict establishes.

Error is assigned in the admission of evidence. Evidence was admitted, under defendant’s objection, to the effect that after the injury the men operating the cranks attached to the drum on the face derrick were removed from the position formerly occupied at such work and placed some sixty feet away outside of the building and the rope led from the face derrick to a crank set up sixty feet from the derrick. We find no prejudicial error in the admission of this evidence. One of the claims of the plaintiff was that in the opération of the derrick the men were required to stand in a dangerous-position, and the evidence was offered and received to show that it was practicable to have the men operating the power-stand out of danger as they did after the injury, and the evidence was offered, not for the purpose of showing negligence on the part of defendant, but to show it was practicable to so-place the men furnishing the power that they would be out of danger. Eor this purpose the evidence was properly admitted. *Grundy v. Janesville,*84 Wis. 574, 54 N. W. 1085; *Lind v. Uniform S. & P. Co.*140 Wis. 183, 120 N. W. 839*Norris v. Atlas S. S. Co.*37 Fed. 426; *Laporte C. Co. v. Sullender,*165 Ind. 290, 75 N. E. 277; *Redepenning v. Rock,*136 Wis. 372, 117 N. W. 805; *Willey v. Boston E. L. Co.*168 Mass. 40, 46 N. E. 395; *Quinn v. N. Y., N. H. & H. R. Co.*56 Conn. 44, 12 Atl. 97; *Kuhns v. Wis., I. & N. R. Co.*76 Iowa, 67, 40 N. W. 92.

We are convinced that the first, second, third, fourth, eleventh, and twelfth findings are sustained by the evidence and support the judgment. We find no reversible error in the record.

*By the Gowrt.-*— Judgment is affirmed.

SiebecKee, J., took no part.