174 Wis. 437 | Wis. | 1921
It is-conceded that the relations of the parties were su'ch that it was the duty of defendants to furnish the plaintiff a safe place to work and to furnish such safety
It is established by the undisputed testimony and the verdict that the place of employment was not reasonably safe; that it was practicable for defendant to use such safety devices as to render the place of employment safe without preventing the practical operation of the machine; that such safety devices were not provided, and that the failure to provide them was the proximate cause of the injury. These are issues which are usually warmly contested in cases of this character, but in their absence the only questions before us are whether the issue of contributory negligence was properly submitted on instructions to the jury, and whether there was any evidence to sustain the verdict of the jury as to contributory negligence.
It is strongly urged by respondent’s counsel that contributory negligence was shown by the testimony of the plaintiff to the effect that she was not looking at the wheel and was only looking at the wringer when the accident happened. It is claimed that if she had gathered her skirts in her hands and looked more carefully the accident would not have happened. »
In considering these arguments certain other facts are to be borne in mind. Unlike some other cases under these
The injury was closely connected with the act of reaching for and taking down the wringer, when most of the time her gaze was in a different direction from the engine. In obeying the directions of her mistress she was required to pass near the engine, a dangerous machine when unguarded, and yet the testimony shows that she was unaware of the danger in doing her work in the manner she did. A brother of defendant testified that the fly-wheel, running at 500 revolutions per minute, would create considerable suction, and that if a woman of the size of plaintiff stood between the fly-wheel and the kettle there would be some danger of her skirts being drawn into the fly-wheel by the suction, depending on how she stood.
The defendant’s wife testified that the first summer they had the engine she walked so close to it that she was drawn close in and it caught her, but she grabbed her skirts loose; that she told her husband of it. It does not appear that plaintiff had been informed of this fac-t or of any other which would tend to put her on her guard. In this tendency of the machine was a hidden danger not likely to be appreciated by one unacquainted with machinery and not understood by plaintiff, and it is not at all unlikely that it was the cause of the injury.
We are convinced by the testimony that plaintiff was doing her work in the usual afld customary manner, under the
In the case of Puza v. C. Hennecke Co. 158 Wis. 482, 149 N. W. 223, Mr. Justice Timlin said:
“It is quite safe to say that an intended and continued use of a known defective appliance or a known unsafe place Ity the employee in substantially the same way as the employer instructed or intended it should be used, falls under the definition of assumption of risk as expressed in this statute and is not to be considered contributory negligence.”
If the action had been brought before the enactment of the statute^ above cited it would have been a proper question for the consideration of the jury whether plaintiff had assumed the risk. Although the defense has been abolished, and although it is no longer necessary to submit to the jury the question of assumption of risk, it would seem best in cases of this character to instruct the jury that merely continuing in an employment and doing work as intended by the employer and the employee in the usual and ordinary manner, although the place of work or appliance is unsafe, does not constitute contributory negligence. In view of the facts in this case, if such an instruction had been given it is quite probable that the answer of the jury to question 6
By the Court. — The judgment is reversed, and the cause is remanded with directions that the answer to question 6 be changed from Yes to No and that judgment be entered for the plaintiff for the amount of damages assessed by the jury.