Stanwick vs. Butler-Ryan Co.

defendant did not furnish the plaintiff with a reasonably safe place to work and reasonably safe and suitable materials with which to build the staging from which he fell while building the same; that the plaintiff did not know, nor could he have known, of the alleged defective materials by using ordinary care and diligence as a carpenter; that the secretary of the defendant did give special instructions to use the stringer which broke, and in the place in which it was being used, to his foreman, at the time of said accident; that there was no other and safe lumber at hand, provided by the defendant, which its workmen might have used in building the staging at the time of the accident; that the plaintiff did not represent to the defendant's secretary that he had experience in the building of bridges or docks at the time or before he was put to work for the defendant; that the plaintiff was not guilty of negligence which in any manner contributed to his said injuries; that the plaintiff sustained damages by his said injuries to the amount of $1,000. From the judgment entered thereon accordingly, pursuant to the order of the court, the defendant brings this appeal. The stringers mentioned were parts of the staging being constructed at the time for the sole purpose of enabling the workmen to line up and saw off the piling. As soon as that particular work should be completed, the staging would have performed its purpose, and was then to be removed. The stringers were attached, at or near each end, to the piles by means of drift pins or bolts. Upon these stringers, so attached, two planks - each three inches thick and twelve inches wide and fourteen or sixteen feet long, and weighing about 150 pounds -were to be laid close to the piling at the north bent, and two similar planks close to the piling at the south bent. It appears that the plaintiff and his coemployees raised all four of the planks at the north bent, and then, while in the act of moving the third and fourth planks toward the south bent, the middle stringer broke,

Stanwick vs. Butler-Ryan Co.

and the plaintiff was injured. The defendant contends that the method of constructing the staging was left entirely to the judgment and discretion of the men doing the work, and hence, if they performed the work in a manner which proved to be disastrous, the defendant cannot be held responsible for the result of their own mistaken judgment.

If it appeared that the manner and method of doing the work was the sole cause of the injury, then we might be inclined to hold with the defendant, and that the case came within the principles frequently announced by this court. Peschel v. C., M. & St. P. R. Co. 62 Wis. 338; Johnson v. Ashland Water Co. 77 Wis. 51; Corcoran v. Milwaukee G. L. Co. 81 Wis. 191; Peffer v. Cutler, 83 Wis. 281; Van den Heuvel v. Nat. Furnace Co. 84 Wis. 636. But such does not appear to be the fact. As indicated, the jury, among other things, found that the defendant did not furnish the plaintiff with a reasonably safe place to work and reasonably safe and suitable materials with which to build the staging from which he fell; that the defendant's secretary gave special instructions to use the stringer which broke, in the place in which it was being used when it broke; and that there was no other and safe lumber at hand, provided by the defendant, which might have been used at the time. These findings, with others mentioned, established the actionable negligence of the defendant, within the principles repeatedly stated in the decisions of this court. Wedgwood v. C. & N. W. R. Co. 41 Wis. 478; Schultz v. C., M. & St. P. R. Co. 48 Wis. 375; Kaspari v. Marsh, 74 Wis. 562; Johnson v. First Nat. Bank, 79 Wis. 414; Engstrom v. Ashland I. & S. Co. 87 Wis. 166; Cadden v. Am. S. B. Co. 88 Wis. 409.

We cannot say that the findings mentioned are not sustained by the evidence. Nor can we say that of the finding of the jury to the effect that the plaintiff did not know, nor could he have known by the use of ordinary care and diligence, that such materials furnished were defective.

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Stanwick vs. Butler-Ryan Co.

Criticism is made upon some portions of the special verdict. Thus, it is claimed that the court improperly answered the second question submitted, to the effect that the plaintiff was injured while in the employ of the defendant, “as alleged in his complaint." Counsel say: "Undoubtedly, the court meant to find that the plaintiff was injured while in the defendant's employment, and no more. But he went further, and told the jury that the allegations of the complaint as to the cause of the injury were true." If there was any ground for apprehending that the answer would be so misunderstood, counsel should have called the attention of the court to the fact in time to have it corrected on the trial. But the answer by the court of the first, second, third, and fifth questions pretty clearly shows that the jury must have understood the answer as counsel say the court undoubtedly meant to be understood.

The sixth question submitted to the jury was this: “Did defendant furnish plaintiff with a reasonably safe place to work and reasonably safe and suitable materials with which to build the staging from which he fell while building the same." The jury answered: "No." We do not think counsel is warranted in claiming that the question is double. There is but one question asked, and that is answered in the negative. The place where the plaintiff was at work at the time of the accident was on the stringer which broke. It broke because the materials of which it was composed were not reasonably safe and suitable. Such defective material made the place for working thereon unsafe.

We cannot hold that there is reversible error by reason of the court allowing an expert bridge builder to give his opinion as to the sufficiency of a stringer like the one in question to bear the weight put upon it. What is said in Donovan v. C. & N. W. R. Co., ante, p. 373, is applicable here. We perceive no reversible error in the record.

By the Court.- The judgment of the circuit court is af firmed.

Paige vs. Kolman,

PAIGE, Respondent, vs. KOLMAN, Appellant.

May 4-May 22, 1896.

Public lands: Railroad grant: Title.

A grant of lands by Congress to the state to aid in the construction of a railroad (13 U. S. Stats. at Large, 66, ch. 80) was a grant in præsenti, and when the road was located and the exact sections identified the title attached as of the date of the grant, so that the United States could not afterwards give title by patent to another.

APPEAL from a judgment of the circuit court for Ashland county: JOHN K. PARISH, Circuit Judge. Reversed.

Trespass. The plaintiff sued for the cutting of logs and timber upon the N. W. of section 15, township 47 N., of range 4 W., in Ashland county, Wisconsin, and claimed the highest market value of the manufactured product, under R. S. sec. 4269. The defendant first served and filed an affidavit of cutting the logs by mistake, and offered to allow judgment to be taken against him for the stumpage value of the same, alleged to be $62.10, and costs. The defendant also served an answer admitting plaintiff's title and alleging that the logs were cut by mistake. Afterwards, by leave of court, the defendant served and filed a supplementary answer, alleging that the plaintiff was the owner of the land described in the complaint, but was not the owner of the timber thereon; but that all of said timber, and the right to cut and remove the same, was excepted from the deeds through which the plaintiff derived his title.

A special verdict was returned by which it was found (1) that plaintiff was the owner of the timber and logs cut and removed by the defendant; (2) that said timber cut consisted of 65,000 feet of pine saw logs, thirty cords of cord wood, and three cords of pulp wood; (3) that the trespass was by mistake; and (4) that the value of the timber cut,

Paige vs. Kolman.

while standing, was $179. From judgment for this amount and costs the defendant appealed.

A. E. Dixon, for the appellant.

For the respondent there was a brief by Sanborn, Dufur & O'Keefe, and oral argument by A. W. Sanborn.

WINSLOW, J. The land upon which the trespass was committed was unoccupied timber land. Hence the plaintiff must prove valid title in order to recover. Hungerford v. Redford, 29 Wis. 345.

In order to prove title, the plaintiff introduced a patent from the United States of the land in question, dated November 15, 1894. The land in question was a part of an odd-numbered section within the limits of the grant made by sec. 3 of the act of Congress of May 5, 1864 (13 U. S. Stats. at Large, 66, ch. 80), by which every alternate section of public land, designated by odd numbers, for ten sections in width on each side of a certain projected railroad, was granted to the state of Wisconsin. The benefits of this grant were afterwards conferred by the state on the Wisconsin Central Railroad Company by various acts. P. & L. Laws of 1866, ch. 314, 362; P. & L. Laws of 1869, ch. 257; P. & L. Laws of 1871, ch. 27.

It appeared by the evidence that the line of railway of the Wisconsin Central Company was constructed through this very section (15) within the time limited by the grant; that a map of the location of the railroad was filed in the United States land office at Ashland in January, 1870, by which it appears that the line of road runs through said section; that on July 2, 1887, the Wisconsin Central Company filed in said land office at Ashland a selection of lands claimed by it under said grant, which list includes section 15 in question. It is a familiar principle that a grant of lands by Congress, such as the grant in question, is a grant of lands in præsenti and confers a present title. This title