Hastings, Kiley and Fairchild, Circuit Judges.
FAIRCHILD, Circuit Judge.
Gary Hake brought an action for personal injury against Eagle Picher Company.*fn1 Hake recovered $192,845.75 and that determination is not challenged here. Two insurance companies were brought in, and the issues on appeal relate to their coverage of Eagle Picher's liability to Hake.
In October, 1961, Eagle Picher was engaged in widening an earthen dam on its mining property. Hake, an employee of Gensler Brothers, drove a Gensler truck in the course of the widening project. He was injured when the truck he was backing along the dam went over the edge. Hardware Mutual Casualty Company had issued an automobile liability policy to Gensler covering the truck. General Accident Fire and Life Assurance Corporation, Ltd. insured Eagle Picher against liability generally, and its policy contained an excess insurance clause.
The district court gave judgment that Hardware covered Eagle Picher's liability up to policy limits of $100,000 and was not entitled to pro ration of coverage with General Accident Hardware has appealed.
Before trial, Eagle Picher moved for summary judgment determining that Hardware's policy covered liability, if any, of Eagle Picher to Hake. Judge Doyle denied the motion, and wrote an opinion which very clearly set forth the background and the issues relevant to coverage by Hardware.*fn2 Although the opinion dealt with the pleadings and the showings made on the motion, including depositions, it happens that the description in the opinion of factual claims is a substantially accurate statement of those which were supported by evidence at the trial. We shall avoid unnecessary duplication.
It suffices to say that the critical questions are whether Eagle Picher's liability to Hake arose out of the "use" of the dump truck and whether Eagle Picher was "using" it, in each case within the meaning of the Hardware policy.
The jury returned a special verdict. Eagle Picher's liability to Hake was determined by answers that Eagle Picher was negligent with respect to its duties under the safe place statute;*fn3 that such negligence was a cause of the accident; that Hake was negligent with respect to his own safety; that such negligence was a cause; that 67% of the combined causal negligence was attributable to Eagle Picher and 33% to Hake; and that Hake's total damages were $287,829.48. Judge Doyle found as a matter of law that in certain senses detailed in his earlier opinion, and in respects other than what he referred to as job site control, Eagle Picher was a "user" of the dump truck. He submitted to the jury the question whether, with respect to the construction of the dam, Eagle Picher was exercising control over the truck being operated by Hake. The jury answered "Yes".
Hardware now argues four propositions: (1) Eagle Picher's liability did not arise out of the use of the truck; (2) Eagle Picher was not using the truck; (3) the instruction defining the nature and degree of control required was erroneous; and (4) in any event the loss should have been prorated between Hardware and General Accident.
(1) DID EAGLE PICHER'S LIABILITY ARISE OUT OF THE USE OF THE TRUCK ?
The pertinent provision of the Hardware policy, read literally, requires that the bodily injury because of which an insured has become liable must be an injury arising out of the use of the automobile. We agree with Judge Doyle that the use of the dump truck out of which Hake's injury arose "is in the mainstream of normal and expected uses." It would seem that this sufficiently demonstrates that this provision was fulfilled. Both insurance companies have argued here, however, as if the policy required that the liability must be a liability arising out of the use of the automobile.
The negligence of Eagle Picher, claimed by Hake and found by the jury, consisted of failure to fulfil the duties required by sec. 101.06, Wis. Stat. The dam was a "place of employment", and Eagle Picher was the "employer" with respect to it, as well as "owner". Hake was a "frequenter." The statutory duties owed to Hake were to furnish a safe place, to furnish and use safety devices and safeguards, to adopt and use methods and processes reasonably adequate to render the place safe and do every other thing reasonably necessary to protect his safety. The applicable standard of safety, found in sec. 101.01 (11), was such freedom from danger as the nature of the employment or place of employment will reasonably permit.
The gist of Hardware's argument seems to be that since Eagle Picher's found negligence was negligence with respect to the condition of its premises, and not what Hardware describes in its brief as "automobile negligence", Eagle Picher's liability did not arise out of the use of the truck.
It is clear from the evidence, however, that Eagle Picher intended trucks to be used as this one was and that the place was deemed unsafe because the condition of the dam (particularly the freshly widened part) and the absence of guide markers or signals made the place dangerous for the use of trucks. Under the circumstances the dangerous condition and the normal and intended use of the truck interacted to generate Eagle Picher's liability. The two ...