188 Wis. 648 | Wis. | 1926
On August 22, 1924, Felix Czajkowska was an employee of the Cream City Foundry Company. On that day he came to his death, presumably, by reason of electric shock from a brass shell socket on an electric light extension cord, which was in his hand when his body was found. In due course the Industrial Commission made a.n award for primary compensation, which was paid. In entering such award the Commission reserved the right to determine whether the accident in question occurred by reason of the failure on the part of the employer to comply with any law of the state or any order of the Industrial Commission, and to make such further findings and award as the facts should warrant. Thereafter., and on the 31st day of January, 1925, the Commission made a further finding and award, by which it found that Felix Czajkowska’s death was proximately caused by the failure of the Cream City Foundry Company “to comply with Order No. 6037 of the General Orders on Existing Buildings, and that applicant is, therefore, entitled to fifteen per cent, increased death benefit,” and made an award in favor of the widow for an ádditional sum of $778.55. The plaintiffs, the employer and the insurance carrier, brought this action in the circuit court for Dane county, praying that such award be vacated and set aside. From a judgment of the circuit court affirming the award of the Industrial Commission the plaintiffs have appealed to this court.
Pursuant to the authority so conferred, the Industrial Commission has adopted and promulgated comprehensive orders prescribing' and fixing the kind and character of equipment, safeguards, and appliances that shall be used in and about the factories and other places of employment. Among other orders adopted and promulgated by the Commission is Order 6037, being a part of the General Orders on Existing Buildings, which'provides as follows:
“Where portable electric lights must be used, the same shall be equipped with keyless socket of non-combustible, non-absorbent insulating, material, large handle of non-absorbing insulating material, basket guard, proper reflector and special heavy duty cord of the re-enforced or similar type.”
It was found by the Industrial Commission that the death of Czajkowska was proximately caused by a violation of this order on the part of the employer, and the primary compensation awarded to his widow was increased fifteen per cent, by reason of the provisions of sub. (5) (h), sec. 102.09, Stats., which provides: “Where injury is caused by
The- question presented is whether the Industrial Commission was justified in making a finding that the death of Czajkowska was proximately caused by the violation of Order 6037 above quoted. It appears without dispute that every department of the employer’s plant was equipped with a portable electric light complying in every respect with the order under consideration. Czajkowska was a fireman and worked in the boiler room under Thomas Modlinski, the stationary engineer. A portable electric light was provided for the boiler room. It was kept in the compressor room, and Modlinski had instructed Czajkowska that whenever he had occasion to use a portable light to use the one which was kept in the compressor room. It appears, however, that sometime prior to the date of Czajkowska’s death Modlinski had had occasion to use an electrical drill requiring an extension cord of about thirty feet. The drill had an extension cord of only five feet, tie rigged up a temporary cord for use on this particular job, and after he was through using the cord he put it in a tool box and locked it up. It appears that Czajkowska had access to this tool box and was privileged to use tools therein contained as necessity therefor arose in the prosecution of his duties. Having occasion to use an extension light, he evidently took this cord from the box, attached thereto an electric light bulb, and was using the same at the time of his death. Modlinski had never specifically told Czajkowska not to use this temporary extension cord which he had placed in the tool box for a portable electric light. He had, however, according to the undisputed evidence, admonished Czajkow-ska to use the portable' light kept in the compressor room.'
The lower court relied upon the fact that the deceased
Sec. 101.28 subjects employers who violate the lawful orders of the Industrial Commission to a forfeiture of not less than $10 nor more than $100 for each such offense. Does the evidence in this case show a violation of the order which would .subject .the employer to the penalty of this statute? Plainly, it does not. The employer had punctiliously complied with the terms of this order. It had provided portable electric lights for use in every department and equipped in exactly the manner prescribed by the order.
It is plain that the award of the Industrial Commission under review is not supported by the evidence, and it should be vacated and set aside.
By the Court. — Judgment reversed, and cause remanded with instructions to vacate and set aside the award of the Industrial Commission.