86 Wis. 237 | Wis. | 1893
It is the duty of the master or employer to furnish his servant or employee a reasonable safe place in which to perform his work, and suitable and reasonably safe instruments with-which to perform it. But it would seem that it is not sufficient to'charge the employer with neglect in this respect that he had hired one to work for him, and that he, without the knowledge, authority, privity, or consent of his employer, and of his own volition, entered upon the work of the employer in, and occupied in its performance, an unsafe and dangerous place, even though the same service had been performed at other times by other employees for the employer in the same place. The employer is responsible only for his express or implied direction to an employee to work in an unsafe or dangerous place. The work of the employer is to be under his own control, and under the responsibility which the law places upon him; and it is for him or his lawful agent to give such orders or directions as he may judge discreet in respect to the place where his employees shall work, having in view their skill, prudence, and experience. He or his rightful agent may assume the risk in any given case, but the employee cannot of his own mere unauthorized motion take the risk, and hold the employer responsible for disastrous consequences. The liability does not exist unless the employer or his agent knows, or has good reason to believe, that the employee, is serving him in a dangerous place or position; for without such knowledge the duty of warning or protecting the employee does not arise and will not exist, for the plain reason that the liability is not absolute, but relative, and is founded solely on the employer’s
In the present case it is found by the verdict that “ the plaintiff, when injured, was not engaged in the regular course of his duties as one of the defendant’s employees at the placé where directed by defendant’s servants charged with the duty of designating the proper place for the performance of such duties.” The defendant is a corporation, and could act and give direction only by or through its proper officer or agent. There is no pretense that any one in fact assumed on behalf of the defendant to direct where the plaintiff should work, or what he should do, except the foreman, Moore; and as to him the court withdrew from the consideration of the jury all he said or did in that direction, on the ground that the evidence would not warrant them in finding that Moore was charged with the duty of locating the plaintiff at his work, or with the duties of-principal, and that Newton Mills must be considered to have been such ágent. The result is.that it has been established by the verdict that Mills did not act in the premises at all, and the court decided as a matter of law that Moore had no authority to represent the defendant in relation thereto. There is no ground for contending that any other officer or agent of the defendant assumed any authority or direction in the premises. There was, therefore, a total failure to bring home to the defendant notice or the knowledge of any duty it was bound to exercise as to the plaintiff, and it was therefore called on to exercise no protection or means on its part to guard him from injury at the place in question. It was necessary that there should have been some business relation or privity between the plaintiff and defendant in order to raise the duty which it is charged that the defendant neglected.
The judgment of the circuit court seems to" have been ■ rested on the ground that it was found by the jury that the place where the plaintiff got injured was 'the place where the work he was doing -had previously ordinarily been performed, to the knowledge of the defendant’s agent, Mills, and was the place provided by the defendant for the performance of the work plaintiff was engaged in, and was not a reasonably safe place for that purpose, and that the proximate cause of the plaintiff’s injury was a want of ordinary care on the part of the defendant in not providing him a reasonably safe place for him to be while doing his work. The' last finding is, we think, clearly inconsistent
It appears that the plaintiff was inexperienced in the particular work he was engaged in, and had but an imperfect knowledge of the surroundings and its danger. Even if he knew that the place in question was where the work had ordinarily been performed and had been provided by the defendant for that purpose,- which was not shown, he had no right, of his own mere motion, without any previous direction, express or implied, to assume to work therein for the defendant; for, although its employee, as to the particular work in hand he took the risk on himself in thus acting without the knowledge or authority of the defendant, express or implied. We consider the verdict so inconsistent and uncertain, and in important respects not warranted by the evidence as left to the jury by the court, that it cannot sustain the judgment.
There is a conflict in the testimony between Mills and Moore, the foreman, as to the authority of the latter to have spoken and acted for the defendant on this occasion. Upon this question there is no finding. Moore had acted as the foreman of the defendant, it would seem, for a considerable time, and was apparently exercising, in the absence of Mills, control of the men and the work. The situation and the circumstances, all considered in connec
Without considering other questions argued, we think, for the reasons stated, that the verdict should have been set aside and a new trial granted, and that for want of a sufficient and consistent finding on the question of defendant’s negligence the judgment cannot be sustained.
By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.