
    Corrigan, Respondent, vs. West Division Steamship Company, Appellant.
    
      September 24
    
    October 15, 1907.
    
    
      Master and servant: Injuries to servant: Assumption of r-islc: Bill of exceptions: Form: Statutes: Waiver of objections: Appeals: Motion to dismiss.
    
    1. In an action by a servant against a master for personal injuries, if the servant was guilty of that species of contributory negligence known as assumption of risk he cannot recover.
    2. In an action by a servant against a master for personal -injuries, under the undisputed evidence, stated in the opinion, it was held that the plaintiff knew and appreciated, or ought to have known and appreciated, all the dangers incident to the work in which he was engaged at the time of injury, and therefore assumed the risk.
    3. Where it is established as matter of law, upon undisputed evidence, that a plaintiff servant assumed the risk of his employment, the court should grant a motion for a directed verdict in favor of defendant.
    4 Although sec. 2873m, Stats, (ch. 547, Laws of 1907), requires that a bill of exceptions shall include all the testimony set forth by question and answer as shown by the transcript of the reporter's notes, unless the parties to the action stipulate other.wise, it does not repeal nor is it in conflict with. see. 2874, Stats. (1898) — providing for service of a proposed bill, proposed amendments, and the settlement and signing thereof by the judge who tried the cause, — and hence a bill of exceptions was held regularly settled, where the respondent served proposed amendments to the proposed bill, which amendments contained no objection or reference in any form to the fact that the testimony in the bill had been reduced to narrative form, the bill having been afterwards settled and signed upon due notice.
    5. Where a bill of exceptions has been regularly settled, a motion to strike it out should be denied.
    Appeal from a judgment of tbe circuit court for Milwaukee county: Joi-iN K. Paeish, Judge.
    
      Reversed.
    
    This action was brought to recover for personal injuries. Tbe complaint alleges, in substance, that tbe defendant was tbe owner of tbe steamer Ered Pabst, and tbat on tbe 21st day of December, 1904, at Milwaukee, Wisconsin, plaintiff was in tbe employ of tbe defendant for tbe purpose of removing certain batch covers from tbe hatchways of the steamer; tbat tbe defendant negligently permitted tbe deck of tbe steamer to be covered with ice and become slippery and unsafe, and permitted ice to form under the batch cover so as to make it dangerous to remove tbe same; tbat defendant failed to provide proper and usual poles to use in lifting tbe covers; tbat because of such negligence plaintiff was drawn into tbe bold of tbe steamer through tbe hatchway and was injured. Tbe answer put in issue tbe allegations of tbe complaint and set up contributory negligence on tbe part of plaintiff, and further alleged tbat tbe complaint states grounds of negligence not included in tbe notice of injury, namely, tbe allegations concerning batch poles, and that plaintiff is barred from claiming such grounds of negligence by par. 5, see. 4222, Stats. (1898). Upon tbe trial tbe complaint was amended, against tbe defendant’s objections, by adding tbe further ground of negligence tbat tbe defendant negligently failed to provide a sufficient number of men to assist in removing tbe batch covers, and negligently furnished a man of insufficient strength and incompetent to assist in removing the hatch covers. This amendment was ■objected to by defendant’s counsel for the reason that it was not embraced in the notice of injury given and that the time for giving notice had expired before the present action was ■commenced. Motions for nonsuit and directed verdict were made, overruled, and due exceptions taken. The jury returned a special verdict finding negligence of defendant and no negligence on the part of plaintiff and assessing plaintiff’s ■damages at $3,000. Judgment was entered upon the verdict, from which this appeal was taken.
    Eor the appellant there was a brief by Vilas & Vilas, and ■oral argument by C. A. Vilas.
    
    ' Eor the respondent there was a brief by Glicksmcm & Gold, ■■and oral argument by W. L. Gold.
    
   NebwiN, J.

The defendant at the close of the plaintiff’s ■evidence moved for a nonsuit, and at the close of all the evidence for a directed verdict. These motions were overruled and due exceptions taken, and the denial of each motion is ■assigned as error. These alleged errors may be considered together, since they raise the question whether plaintiff made ■a case for the jury. It is contended by counsel for appellant, ■under this head, that upon the undisputed evidence the defendant was not guilty of negligence, and that the plaintiff was guilty of contributory negligence and assumed the' risk.1

If the plaintiff was guilty of that species of contributory negligence known as assumption of risk he cannot recover, and the first question to be determined is whether upon the undisputed evidence he assumed the risk. The evidence establishes without dispute that the plaintiff was employed by defendant to assist in removing hatch covers from defendant’s vessel known as the steamer Ered Pabst, which at the time of the injury, December 21, 1904, was in the Milwaukee river at or near the docks of the Milwaukee Western Fuel Company, in tbe city of Milwaukee. The hatchways-in question were about thirty feet long by eight feet wide. There were five or six parts, or sections, to each hatch cover. On top of each part, or section, were four rings four or five inches in diameter, one on or near each corner. These covers were made of oak and pine or oak and fir plank or timben nailed together, and were about four inches thick and weighed from 250 to 400 pounds and rested on what is known as the-hatch combs, about six inches above the deck, and were flush with the hatch comb and did not overhang the deck. The-hatch comb was made of timber. The plaintiff began work with two helpers at 1 a. m. December 21, 1904, cleaning up the boat, and worked during part of the forenoon on the inside of the boat and also cleaned snow and ice from the deck. ‘'There was sleet and ice on everything.” In the afternoon he and the helpers began moving the hatch covers for the purpose of admitting light into the hold. The plaintiff testified:

“After cleaning away the snow and ice so we could get at them, we lifted two covers, or two sections of this cover, and shoved them aside out of our way, on top of the other covers.I was on one side, I and this man Jones was on one side. The other man was on the opposite side, on the opposite edge of' the section, across the hatchway. Jones and I each had hold of a separate ring on the corner at our end of the hatch, and this'other man had hold of one ring on the other end. That is the way we lifted those hatches. When we came to lift the-hatch which fell, I suppose we proceeded just as before. I held onto- the ring-just as I did the other. This man opposite me, who had hold of the ring . . . when he let go said:'Look out P . . . His end dropped into the hatchway first, then the hatchway fell and pushed into- it, . . . and it went into the-hold, and I went with it. When the hatch section entered through the hold there was but one man on the opposite side, and it twisted on that side and caught me in the ring. After the side opposite me started to go through the hold, I did not have time to pull my hand out. I could not pull my hand out of the ring. . . . The covers fit pretty close, and the snow cannot get in very well, but they were frozen. They could be frozen because water can get in where the snow cannot.They were frozen to the cleat; could tell by lifting it, it was frozen, it was tight. I snppose the one on which I was injured was frozen the same as the other section.”

He also testified that he did not know that the cover which was being removed at the time of the injury was frozen to the hatch and that he had never removed hatch covers before. The evidence further shows that plaintiff was about fifty-five years of age, a carpenter by trade, and had worked at his trade for several years off and on before the injury; that he worked generally at his trade during the summer; that he also worked in various other capacities, farming, taking out timber and ties, and in lumbering operations, also in the teaming business; was also in business for himself in Milwaukee hauling wood and coal from docks and from wood and coal yards to customers.

The wrongs complained of, and upon which plaintiff seeks to recover, are that defendant failed to1 furnish hatch poles and sufficient men to facilitate the removal of the hatch covers, and suffered the deck and hatchway of the steamer Fred Pabst to be covered with ice, and failed to furnish a safe place for plaintiff to work. It is manifest that if plaintiff knew, or ought to have known, the danger of the employment in which he was engaged, he cannot recover, regardless of the negligence of defendant. It is elementary that a servant assumes the ordinary risks of the employment in which he is engaged, and such other risks as he knows, or ought by the exercise of ordinary care to know and appreciate. HoW the removal of the hatch covers was a very simple operation. There was nothing complicated about it and nothing that required skill or experience. It was a duty that could be performed by any ordinary laboring man. The plaintiff was a man of mature years, had large experience as a carpenter and in divers other pursuits well calculated to give him judgment, experience, and information in matters relating to the dangers attendant upon the simple operation of removing the hatch covers. He knew from his experience in cleaning the deck in the forenoon that it was covered with ice, and he knew from the removal of two similar sections of hatch covers before the injury, approximately at least, the weight of the covers and the manner of their attachment to the hatchway. He knew also the difficulty, if there was difficulty, in removing the covers without hatch poles, and he knew the extent of his help in the operation. All these things he knew, or at least in the exercise of ordinary care ought to have known. It is insisted by counsel for respondent that in re^ moving the first two covers they were only pushed aside, but the undisputed evidence shows that they were raised up at least a few inches and taken from their bearings, so the plaintiff had opportunity not only to know generally their weight and the difficulty attendant in removing them, but to observe the condition of the hatch comb, the opportunity for water to enter and ice accumulate, as well as the actual accumulation of ice. With his knowledge and experience and the condition of the deck, covered with ice, and the structure of the hatch combs and covering, he knew, or ought to have known, that the hatch covers would probably be frozen at their bearings. True, plaintiff testified that he did not know whether there was any ice under the third cover being removed at time of injury. But it is quite obvious from his own evidence that he had actual knowledge upon the subject. He testified that the first two covers fitted tight, the snow could not get in, but water could, and they were frozen. He could tell by lifting that they were frozen. The court is of the opinion that upon the undisputed evidence the plaintiff knew and appreciated, or ought to have known and appreciated, all the dangers incident to the work in which he was engaged at the time of injury, and therefore assumed the risk. Sweet v. Ohio C. Co. 78 Wis. 127, 47 N. W. 182; Showalter v. Fairbanks, M. & Co. 88 Wis. 376, 60 N. W. 257; Herald v. Pfister, 92 Wis. 417, 66 N. W. 355; Mielke v. C. & N. W. R. Co. 103 Wis. 1, 79 N. W. 22; Hencke v. Ellis, 110 Wis. 532, 86 N. W. 171; Koepcke v. Wis. B. & I. Co. 116 Wis. 92, 92 N. W. 558; McMillan v. Spider Lake S. M. & L. Co. 115 Wis. 332, 91 N. W. 979; Faber v. C. Reiss C. Co. 124 Wis. 554, 102 N. W. 1049. It being established as matter of law, upon the undisputed evidence, that plaintiff assumed the risk, the court should have directed a verdict for defendant.

A motion was made in this court to strike out the bill of exceptions on the ground that it had not been settled according to law. The proposed bill of exceptions was served July 12, 1907. Thereafter the plaintiff served proposed amendments. The proposed amendments contained no objection or reference in any form to the fact that the testimony in the bill of exceptions had been reduced to narrative form. After-wards, and on August 12th, a notice was served by appellant’s attorneys that the bill of exceptions would be settled on August 16th and signed by the judge who tried the case. The bill of exceptions was settled and signed by the judge in accordance with the notice. Sec. 2873m, Stats, (ch. 547, Laws of 1907), requiring that the bill of exceptions shall include all the testimony set forth by question and answer as shown by the transcript of the reporter’s notes, unless the parties to the action, stipulate otherwise, was passed and published on July 12, 1907. It is claimed by counsel for respondent that, because the testimony is not in the bill of exceptions by question and answer, it is not before the court and cannot be considered. Hence the bill of exceptions should be stricken out. Doubtless, under sec. 2873m, Stats, (ch. 547, Laws of 1907), a party is entitled, if he desires, to have the bill of exceptions contain all the testimony by question and answer' as shown by the reporter’s notes. But this law does not repeal, or attempt to repeal, sec. 2814, Stats. (1898), which provides, in effect, that the party desiring to settle a bill of exceptions must prepare tbe same as proposed by bim and serve on tbe adverse party, who may within ten days propose amendments; that either party may then serve a notice on tbe other that tbe bill of exceptions will be settled by tbe judge at a time and place stated; that, if no amendments be proposed, the bill shall be taken as agreed to, and may be signed by tbe judge, and, if any be served and accepted, tbe proposed bill so amended may be signed. We think it clear that sec. 2814, Stats. (1898), is in force and in no way in conflict with sec. 2813m, Stats, (ch. 547, Laws of 1907), and therefore the bill of exceptions was regularly settled. Here tbe respondent did not ask that tbe testimony be inserted in tbe bill of exceptions, which be bad a right to do by proposed amendment, but proposed other amendments, and tbe bill was settled and signed in accordance with sec. 2874, Stats. (1898), which is in harmony with sec. 2873m, Stats, (ch. 547, Laws of 1907). We think tbe bill of exceptions was regularly settled and that tbe motion to strike it out should be denied.

From what has been said it follows that tbe judgment of tbe court below should be reversed.

By the Court. — Tbe judgment of tbe court below is reversed, and tbe action remanded with instructions to dismiss tbe complaint.

Timms', L, took no part.  