
    Cavanaugh, Respondent, vs. Morton Salt Company, Appellant.
    
      January 28
    
    February 18, 1913.
    
    
      Master and servant: Injury: Gontributory negligence: Evidence: Questions for jury: Negligence of fellow-servant, when not a defense.
    
    1. While plaintiff was engaged with others in unloading salt from the hold of a vessel, a large bucket in which the salt was being hoisted became unlatched and discharged its contents upon him; injuring him. Upon the evidence — which did not show that he had any reason to apprehend such an accident, and tended to show, among other things, that he was doing his work in the customary manner and as directed, and that through negligence of the operator of the hoisting apparatus the bucket in question was elevated so rapidly that the hook to which the bail was attached was brought to a sudden stop with a hard bump when it reached the end of the boom or the carriage, and the latch then became unfastened — it is held, that plaintiff was not guilty of contributory negligence as a matter of law either in working in the hold underneath the bucket or in failing to see that the latch was securely fastened before he gave the signal for hoisting.
    2. Negligence of the fellow-servant who operated the hoisting apparatus was not a defense in this case, under sec. 2394 — 1, Stats.
    Appeal from a judgment of tbe superior court of Douglas-county: Chaeles Smith, Judge.
    
      Affirmed.
    
    On September 5, 1911, plaintiff was injured while in tbe employ of tbe defendant, and this action is brought to recover damages for such injury.
    Tbe defendant operates a dock at Superior, and on tbe day of tbe accident tbe plaintiff was working with other employees of tbe defendant unloading salt from tbe bold of a. boat by means of a hoisting apparatus and large iron buckets. Tbe buckets were lowered into tbe bold by cable and pulley from tbe end of a boom which projected out from tbe dock over tbe boat and about thirty feet above it. When filled with salt tbe bucket was hoisted to tbe boom end and from there was taken by a carriage along tbe boom to tbe dock, where its contents were dumped automatically into receiving chutes. A bucket bad been filled and was being hoisted to tbe boom when it unlatched and discharged its contents into tbe bold of the boat and upon tbe plaintiff.
    Tbe complaint charged tbe defendant with liability by reason of tbe negligent handling of tbe hoisting apparatus, due to tbe carelessness and incompetency of its employee, and further alleged that tbe bucket was defective in construction and that defendant failed to warn tbe plaintiff of tbe dangers-in connection therewith. Tbe answer put in issue all tbe material allegations of tbe complaint and alleged negligence and want of care on tbe part of tbe plaintiff or bis fellow workmen 'and assumption of hazard by tbe plaintiff. Tbe jury returned a verdict in favor of tbe plaintiff and assessed Ms damages at $1,400. Tbe defendant appeals from a judgment entered on sucb verdict.
    
      W. P. Crawford, for tbe appellant.
    
      Vidor Linley, for tbe respondent.
   BauNes, J.

Tbe appellant contends that tbe court erred in refusing to award judgment in its favor because it should be said as a matter of law that tbe plaintiff was guilty of contributory negligence. It is urged tbat tbe undisputed evidence shows contributory negligence in two particulars: First, in working in tbe bold of tbe vessel while tbe bucket was being hoisted and immediately underneath such bucket, and, second, in failing to either securely fasten tbe latch connected with tbe bail of tbe bucket or to see tbat it was securely fastened before plaintiff gave tbe signal for hoisting. It is further said tbat tbe evidence fails to show negligence on tbe part of tbe defendant.

Neither contention in reference to contributory negligence is tenable, and no useful purpose would be served by setting forth in detail tbe evidence which warranted tbe court in submitting tbe case to tbe jury on this question. In reference to tbe first point raised, it is sufficient to say tbat there was evidence tending to show tbat tbe plaintiff was doing bis work in tbe usual and customary manner, and as directed, and tbat tbe apparatus used in hoisting was in good condition. There was no claim tbat plaintiff knew of any similar accident bav- ■ ing happened before or tbat any sucb accident did happen at tbe dock in question in tbe process of unloading salt. Neither was there anything to show tbat plaintiff bad any reason to apprehend tbat tbe cable would break or tbat tbe latch which was designed to prevent tbe bucket from tipping would or could become unfastened while tbe bucket was being hoisted.

In reference to tbe second point urged, there is no evidence tending to show that tbe latch was not properly put in place before the hoisting signal was given. Appellant’s claim is that the latch could not become unfastened in the manner testified to, and the fact that it did become unloosed can only be accounted for on the theory that it was not properly put in place before the signal to hoist was given. But we are unable to say that elevating the bucket so rapidly that the hook to which the bail was attached was brought to a sudden stop with a hard bump when it reached the end of the boom or the carriage would not produce the precise result which followed in this case.

There was plenty of evidence to warrant the jury in. finding that the fellow-servant who operated the hoisting apparatus was negligent. The injury occurred after ch. 50, Laws of 1911 (secs. 2394 — 1 to 2394 — 31, Stats.), became effective. Defendant did not elect to come under the provisions of that law and it had at the time of the accident four employees engaged in common employment with the plaintiff. That act provides that in such a case it shall not be a defense in an action for personal injury that such injury was caused in whole or in part by the want of ordinary care on the part of a fellow-servant. Sec. 1 (sec. 2394 — 1, Stats.). We find no error in the record.

By the Court. — Judgment affirmed.  