Dahlke v. Illinois Steel Co.

| Wis. | Sep 20, 1898

Marshall, J.

Was there any evidence, on the most favorable view that can reasonably be taken of it, to establish actionable negligence ? Appellant supports the affirmative of that proposition by arguing that the danger of working at the stove when the blast was on was unknown to the deceased or to his fellow laborer, Rendt, hence they should have been informed of it by the master, and that the failure so to do, resulting in the injury of the deceased, renders the master liable. Granted that the danger existed, yet it does not follow there was a duty to instruct in regard to it, unless it was reasonably to be apprehended that the circumstances requisite to set that danger in motion might probably occur, and we are unable to perceive anything in the evidence to establish that element.

The duty to instruct does not go so far as to require the master to acquaint the employee with every possible danger to which he may be subjected in the course of his employment. The master has a right to assume that the servant will see and appreciate those dangers which are open and obvious to a person of ordinary comprehension; also that other servants associated with Mm in the common employment will exercise ordinary skill and prudence; also that tools which are furnished will not be so used as to be unreasonably or unusually dangerous, and that a place which is reasonably safe will not be made unsafe by Ihe improper conduct of those who are required to work there, or their fellow-servants ; and as to all such matters the employee assumes the dangers as a part of his contract of employment. Such contract, by implication, includes an assumption of all the ordinary risks incident to the employment, such as the risk of a co-employee’s failing to exercise ordinary care and prudence.

In view of the foregoing elementary principles, it is important to inquire as to the real moving cause of the deceased being subjected to the danger which caused his injury.

There was no trouble about the stove apart from the doors needing ordinary repairs, with which Eendt was familiar, and which he and the deceased were engaged in making when the accident occurred. The operation of tightening the nuts on the door bolts was conducted properly so far as appears, except that it was not proper to do the work when the blast was on, but of that the testimony shows Eendt had no knowledge. It was the duty of the deceased and Eendt to assist Kilz, who was the foreman, and to follow his directions. They were performing their duty in that respect, at least there is evidence to establish that fact. Eendt testified, in substance, that he was sent to help Kilz; that when the doors needed repairing it was customary to mark them with chalk to indicate that fact; that he was instructed by Kilz to fix all doors that were marked, and that he was engaged in carrying out those instructions when the accident occurred. If Bendt knew it was dangerous to disturb the door when the blast was on, that does not appear to be material, because he testified that he did not know the blast was on; that when he fixed the first door in the stove the blast was not on, but that between the time he' left that stove and the time he returned to fix the second door, Kilz, without his knowledge, turned on the blast. So, in any view of the evidence, the negligence which resulted in the accident was that of Kilz and him alone. The relation between him and the deceased was clearly that of fellow-servants. In the absence of negligence either in the employment or retention of Kilz, his negligent act cannot reach back to the common employer as the producing cause of the accident, and there is no evidence in the case tending in the remotest degree to show any such negligence.

The trial court was clearly right in taking the case from the jury.

By the Court.— The judgment of the superior court is affirmed.