Corcoran v. Milwaukee Gas Light Co.

81 Wis. 191 | Wis. | 1892

Oassoday, J.

It appears that the floor on which the foot of the ladder rested was, to some extent, covered with oil, tar, and other slippery substances; that the plaintiff was ordered by the foreman to ascend the ladder for the purpose named; that while in the act of doing so, and by reason of the condition of the foot of the ladder, and such slipperiness, the same slipped, and consequently the plaintiff fell and was injured. The particular defect in the ladder complained of is the absence of any spikes or other appliances in the lower end to prevent the same from slipping upon the floor.

The general rule undoubtedly makes it the duty of the employer to furnish his employee not only with a reasonably safe place in which to do the work assigned, but also with reasonably safe implements or machinery for doing the same. It is equally well settled that one who contracts to work for another in any employment assumes the usual and necessary risks of such employment, especially as to such hazards of which he has full knowledge. Paule v. Florence Mining Co. 80 Wis. 350.

In applying these well-settled rules we are to determine whether the complaint states facts sufficient to constitute a cause of action. It will be observed from the foregoing statement that the plaintiff was no novice in the business. Eor years prior to the accident he had been engaged in making general repairs in and about the same building. The making of such general repairs necessarily required the exercise of sonle mechanical skill. Previous to the injury he had been occasionally required to ascend the same or a similar ladder for like purposes. It must be assumed that he had sufficient intelligence to comprehend the natural and ordinary results of placing the foot of a ladder, without spikes or other appliances for holding the same, and without being guarded, upon a slippery floor, while he attempted to ascend to the top. His business of making general repairs would seem to be sufficiently comprehensive to include the making of the foot of such ladder secure by some appliance, fixture, or guard. To attempt to ascend without first making the foot of the ladder secure would seem to be negligent, if not reckless. The natural, if not inevitable, result of such an attempt, under such circumstances, is too obvious not to be anticipated by the exercise of ordinary care on the part of a man of the plaintiff’s admitted experience. Hoth v. Peters, 55 Wis. 405; Peschel v. C., M. & St. P. R. Co. 62 Wis. 338; Goltz v. M., L. S. & W. P. Co. 76 Wis. 136. It is unlike the exposure to some concealed or unforeseen danger, or to a defect or danger which the injured party could not be required or expected to remedy. It is unlike the recent case cited from Kansas, where the injured party was thrown from a pier by'the rebound from a blow struck with a maul handed to him by the defendant’s foreman, by reason of its uneven face, which was unknown to the plaintiff. Chicago, K. & W. R. Co. v. Blevins, 46 Kan. 370. In the case at bar the plaintiff put himself in peril by thus attempting to ascend the ladder while the foot of it was thus left insecure. The case is quite similar in its facts to Marsh v. Chickering, 101 N. Y. 396, where the plaintiff was injured by the slipping of a ladder furnished by the defendant, and which had been used by the plaintiff in safety for over six weeks in lighting lamps in front of the defendant’s building, and in which it was held, upon the facts stated, that there could be no recovery.

The learned counsel for the plaintiff virtually concedes that there could be no recovery here had not the defendant, prior to the injury, promised to procure a safe ladder, and upon which promise the plaintiff relied. This court has held that in a proper case a servant may rely upon such assurance for a reasonable time for the performance thereof; but that, if he remains in such service after the expiration of such reasonable time, he is thereby deemed to have waived his objection and assumed the risk. Stephenson v. Duncan, 73 Wis. 404. But the allegations here fail to bring the case within the rule stated. Besides, as indicated in Marsh v. Chickering, 101 N. Y. 396, the rule is hardly applicable to a case like the one at bar.

By the Court. — The order of the circuit court is reversed, and the cause is remanded for further proceedings according to law.