149 Wis. 457 | Wis. | 1912
Lead Opinion
Tbe following opinions were filed March 12, 1912:
Tbe only serious question presented on tbis appeal is whether there was sufficient evidence to justify tbe jury in finding that tbe defendant negligently allowed an unsafe and improper method of shortening tbe lifting chain to be used in its shop. Tbis question must be answered in tbe affirmative.
Tbe circumstances of tbe accident were in brief these: Tbe workmen were engaged in completing a very heavy iron or steel arch, wbicb was one of thirteen to be used in viaduct construction, and in course of tbe work it was necessary to lift tbe arch by means of a large electric traveling crane and carry it. to a certain planing or milling machine in order to plane off certain parts thereof. Tbe planer was located under a gallery in tbe shop, and for tbis reason it became necessary to shorten tbe chain used in lifting the arch. The chain was fitted with a grab link at one end for the purpose of shortening it quickly. This grab link was a very large, long link, with a long aperture large at the upper end and tapering to a small narrow slit at the lower end, the idea being that the chain could be at once shortened by bringing the body of the chain up through the link, in which position it would be securely gripped by the narrow part of the aperture in the grab link, if the part of the chain so passed through the grab link was carefully put below the link which was permanently attached to the grab link, so that tbe part passed through would be at tbe bottom of the narrow end of the grab link. If, however,
We have carefully examined the testimony to ascertain whether there was credible evidence tending to show that this latter, or unsafe, method of shortening the chain was frequently and customarily used in the shop with the master’s knowledge, or for so long a time that the master’s knowledge must be presumed, and find that there were several witnesses who worked for the defendant for various periods during the two or three years immediately prior to the injury when the grab-hook chain was in use, and who testified to seeing the unsafe method frequently used in the shop. These witnesses seem to be credible witnesses, at least there is nothing in the case which would justify the court in saying that they are not to be believed. So we come to the conclusion that there is sufficient foundation for the finding in question.
This conclusion really disposes of the case. If the defendant knowingly permitted a method of fastening the chain which it knew or ought to have known to be unsafe to be customarily used in the shop, it was undoubtedly guilty of negligence notwithstanding it may have promulgated formal orders to adopt some other method (5 Thomp. Comm. on Reg. § 5404, Collins v. M. P. & N. R. Co. 136 Wis. 421, 117 N. W. 1014), and if, as the jury found in the present case, the use of this method proximately caused injury to an employee
The remaining rulings complained of by the appellant do not seem to require detailed treatment. They have been carefully examined and are not deemed to be in any material respect prejudicial, even if it should be held (which it is not) that any of them were erroneous or doubtful. The issues in the case were in our judgment fairly tried and submitted to the jury, and the judgment must be affirmed.
By the Court. — It is so ordered.
Concurrence Opinion
I concur in this decision because it appears to me that the business carried on by employer and engaged in by employee was of that hazardous nature in which the law imposes upon an employer the duty to make and promulgate rules for conducting the operations of the shop. This, duty is not performed by mere perfunctory publication of rules, but some care and diligence is required in seeing that such rules are put into practice and not habitually disregarded. I do not think the rule of this case should be extended to include less hazardous occupations, because it trenches so closely upon the fellow-servant rule. The liability incurred under this rule seems also to differ from that incurred by knowingly retaining in the service an incompetent employee, in that in the latter case all the acts of negligence must have been those of one fellow-servant, while here they may be a series of negligent acts or omissions indulged in by several otherwise competent fellow-servants with the knowledge, actual or presumed, of the employer.
A motion for a rehearing was denied May 14, 1912.-
