Kimball v. Universal Crushed Stone Co. , 151 Wis. 114 ( 1912 )

BARNES, J.

Tbe appellant insists tbat there was evidence tending to show (1) tbat tbe room was-not well lighted; (2) tbat tbe cement floor was not level; (3) tbat tbe face of tbe wheel was convex; (4) tbat an insufficient force of men was provided to do tbe work; (5) tbat tbe plaintiff’s regular and usual place of employment was in another building; and (6) tbat plaintiff did not know of tbe unevenness of tbe floor or of tbe convexity of tbe face of tbe wheel. From these facts appellant argues tbat tbe jury might have found tbat tbe defendant either knew or ought to have known of the condition of tbe wheel and tbe floor -and was negligent in failing to wain ,the plaintiff of tbe danger of tbe wheel toppling over because of these conditions, and furthermore tbat it might have acquitted tbe plaintiff of contributory negligence and of assumption of risk.

The wheel was ninety inches in diameter and its face was thirteen inches in width. The hub and the rim were connected by eight spokes. After the wheel had been removed from the shaft to which it had been attached, it stood on the floor in an upright position in close proximity to an abutment. It was necessary to move it from the place where it stood in ■order to roll it along the floor to the opening through which it was to be removed from the room. The workmen “cut” or gouged the wheel back and forth for some time until it was moved out a couple of feet from the abutment and far enough therefrom so that it could be rolled along on the floor. During the “cutting” process the plaintiff stood on the abutment assisting in the work. When the parties were ready to begin rolling the wheel, plaintiff turned his back thereto to step ■down from the abutment, and before he got out of the way of the wheel it fell over in his direction and injured him. Rone •of the employees who were about the wheel at the time of the accident, aside from the plaintiff, testified in the case.

It is undisputed that the convexity of the wheel was one ■eighth of an inch. Stated in another way, the center line of the face of the wheel projected one eighth of an inch beyond its outer edges. The wheel in question had been used for driving a belt, and the evidence showed that such wheels are slightly crowned toward the middle of the face, and that there was nothing unusual about the construction of this one. It may well be doubted whether there is any evidence tending to show that the concrete floor was not level, but we will assume the fact to be that it sloped one eighth of an inch to the foot at the place where the wheel stood when it fell over. This is the most that plaintiff claims. The plaintiff testified that when he let go of the wheel to step down from the abutment he was not conscious of exerting any force upon it to hold it in an upright position, and that it was not inclining in his direction so as to require any strength on his part to hold it in position, but that it stood perfectly straight. It is obvious that not to exceed six and one-half inches of the face of the wheel could rest upon the floor and that in this distance the inclination of the floor was substantially one sixteenth of an inch.

It seems apparent that the accident could not have resulted from the causes which plaintiff assigns, and that there was no causal connection between the failure to warn and the accident, and therefore no negligence in not warning. The law of gravity is immutable, and we think it is impossible that the unevenness of the floor coupled with the convexity of the wheel should so disturb the center of gravity as to cause the wheel to topple over, when considered in connection with the slight momentum which the wheel would have in moving to one side about three sixteenths of an inch. The court was therefore right in not submitting the case to the jury. Groth v. Thomann, 110 Wis. 488, 495, 86 N. W. 178; Vorbrich v. Geuder & P. Mfg. Co. 96 Wis. 277, 71 N. W. 434; Badger v. Janesville C. Mills, 95 Wis. 599, 603, 70 N. W. 687; Lee v. C., St. P., M. &. O. R. Co. 104 Wis. 352, 77 N. W. 714; Wunderlich v. Palatine F. Ins. Co. 104 Wis. 382, 80 N. W. 467; Kroger v. Cumberland F. P. Co. 145 Wis. 433, 130 N. W. 513: Flaherty v. Harrison, 98 Wis. 559, 74 N. W. 360.

If an insufficient number of men were employed, that fact was as apparent to the plaintiff as it was to the defendant, and in any event there was no evidence tending to show that the failure to furnish additional help had anything to do with the accident. There is an additional reason why the plaintiff cannot recover in this case, but it is unnecessary to discuss it.

By the Qomi. — Judgment affirmed.