Graass v. Westerlin & Campbell Co., 194 Wis. 470

Graass v. Westerlin & Campbell Co.

194 Wis. 470 | Wis. | 1928

The following opinion was filed November 8, 1927 :

DoeRFLer, J.

As is evident from the assessment of damages by the jury, the injuries sustained were of a distressingly serious nature, and defendant’s counsel in his brief does not assign as error the correctness of the assessment. While the plaintiff grounds his action upon three distinct causes of negligence, we will confine ourselves in this opinion to the consideration of but one, which was submitted to the jury in questions number 3 and 4 of the special verdict. Question number 3 reads: “Did Lloyd Lewis negligently fail to warn the plaintiff of the danger incident to the handling of the oil-drain valve ?” Question number 4 reads: “Was such failure to warn a proximate cause of plaintiff’s injury?” ■

The contract between the Union and the defendant, among other things, required the defendant to-instruct the proper employees of the Union in the operatiofi of this plant, of which the oil-trap valve was.a part. Having assumed that obligation, the duty devolved upon the defendant to so instruct as to enable the employees operating the valve to avoid such danger as was unknown to them, and which by the exercise of ordinary care they could not readily anticipate. Where the danger is open and notorious, and where the mechanism is simple and the danger is obvious, or where the employee by reason of his experience has knowledge of the danger, ordinarily instructions are unnecessary; but where it is complicated, so that it may not be readily under*476stood and is not understood by the employees, and a situation is presented where the employer either was cognizant of the danger or ought to have been cognizant thereof, proper instructions are required.

The evidence discloses that before the plant was operated in the strawberry room, the equipment was freed from ingredients which might produce a sediment in the oil trap, by the application of atmospheric pressure. There is a conflict in the evidence in this case tending to show that the apparatus in the room in which the injury occurred had not been freed of foreign substances as was done in the strawberry room, and the fact that a sediment in the oil trap appeared at the time of the accident is rather corroborative of plaintiff’s claim that the atmospheric pressure to free the apparatus from foreign substances had not been applied. At least, this presented a question for the jury to determine.

It is also disclosed by the testimony of three of the defendant’s experts, viz. Hammerslag, Lewis, and Mack, that small particles of scale and grit might be present in the apparatus and lodge in the oil trap, where they would sink to the bottom, and that the valve would have to be opened considerably to allow them to escape; and that there might have been a slug of viscous matter that would come out with the oil, causing the oil and the viscous substance to spatter about the room, which would have a tendency to endanger the life, limb, and health of the employee operating the valve. It requires no argument to convince one that a pressure of from 140 to 175 pounds to the square inch, applied to the interior of the oil-trap tank, would have a tendency to force the oil, mixed with anhydrous ammonia, out through the opening of the valve with tremendous force if the valve were opened to a considerable degree; and it is equally clear, in view of the high pressure to which the interior of the tank was subjected, if a viscous substance forms at the mouth of the valve the oil will be forced out of the opening when the latter becomes sufficiently large to allow the plug and the oil to be expelled. *477The valve was so situated as to require the operator to bend his body to enable him to reach it with his hand, and this would bring his face in rather close contact with the valve and also the pail located beneath the pipe through which it was designed that the oil would pass.

The plaintiff testified that Mr. Lewis, defendant’s engineer, never gave him any written instructions with the exception of a certain placard which contained nothing concerning the valve. With reference to the drainage of oil,'he was told that it had to be drained quite frequently, every day perhaps, and as he (Lewis) had done it; to put a pail under this trap, and to then crack the valve just a little bit. He was further told to open it just a little more, until the oil began to ooze out in a sort of ice-cream fashion, and the minute that oil stopped running, to quickly shut the valve. The instructions thus received, as testified to by the plaintiff, were the only ones given him by defendant’s engineer, Lewis, and immediately preceding the accident the plaintiff proceeded to turn the valve in accordance with his instructions. He cracked the valve slightly, and no oil appeared. He continued this cracking carefully, and suddenly, and without perceiving any prior indication of danger, the oil was expelled through the opening with such force and violence that it rebounded from the pail and splashed over a large portion of the room, covering the plaintiff with oil mixed with this virulent poison known as anhydrous ammonia.

Assuming that the contract between the defendant and the Union did not require the former to instruct the plaintiff as to the proper operation of the valve, nevertheless it is certain that, inasmuch as Lewis assumed to instruct the plaintiff in this regard, he was under obligations to give him full, proper instructions as to the danger which might result under conditions like those herein existing, where a plug was formed at the mouth of the valve as the result of the viscous formation of the oil containing the foreign sediment. Karsteadt v. Phillip Gross H. & S. Co. 179 Wis. 110, 190 N. W. 844.

*478Lewis was a college graduate, and a mechanical engineer with many years of experience in the erection of refrigerator appliances. Whether an accident of this kind had ever occurred in the operation of a valve like the one in question has no material bearing upon the liability of the defendant in this case. Lewis knew of the tremendous pressure in the tank; he knew, or ought to have known, the virulent poison known as anhydrous ammonia. He also knew that the oil would be liable to be heated to from 100 to 200 degrees Fahrenheit. Lie and the defendant’s experts knew that foreign substances like scales from the pipe, and from other sources, might settle to the bottom of the valve, and that it would create a viscous substance when mixed with the oil, which would act in the nature of a plug. Not a single word of express warning was given to the plaintiff of the danger connected with the operation of the valve under circumstances like those which existed in the instant case. Instead of informing the plaintiff of the deleterious effect which oil and anhydrous ammonia would have upon plaintiff’s person if it came in contact therewith, he expressly deprecated such danger and told the plaintiff that such contact would not hurt him.

How, under the facts thus detailed, can it be consistently said that Lewis had complied with the duty devolving upon him under the contract and in law, to properly instruct the plaintiff and to warn him of the danger which lurked in the operation of this valve? Moreover, how can it be said that under the evidence in this case rational men might not differ as to whether the proper instructions were or were not given ? To say the least, the question presented a jury issue, and the jury having decided adversely to the defendant, its answer ought not to be disturbed.

No argument is necessary to persuade one that inasmuch as the jury found the defendant negligent in the respect indicated, the question of proximate cause was also one for the jury.

*479We now come to the issue of contributory negligence, which was submitted to the jury and which was decided favorably to the plaintiff. The burden of proof upon this issue rests with the defendant. The plaintiff was a man thirty-eight years of age. He was a graduate of a high school. He was a man of rather more than ordinary intelligence. He knew something about liquid ammonia in its commercial form, but was not familiar with anhydrous ammonia. He had no knowledge of the baneful effects of this gas, heated as it was, and holding in suspension oil, when it comes in contact with the human body, tie had been selected by the Union as an employee to assist in the installation of this refrigerator. All the knowledge he possessed of the operation of a refrigerator plant he derived from Lewis. He was not possessed with knowledge of the possible formation of a viscous, mass at the mouth of the valve and the possible formation of a plug. After Lewis left the plant at Sturgeon Bay, plaintiff operated the oil valve as he was instructed on about ten different occasions, and at no time was there any evidence of the formation of a plug.

On one occasion while the plaintiff was present, Lewis attempted to drain the tank. He turned the valve, without effect. Lie turned it again, and continued to turn it until it was wide open, and no oil came. He then dismantled the valve, took off the pressure on the tank, and discovered that the valve was set upside down. From this it is argued by defendant’s counsel that after plaintiff had given several turns to the valve he should have realized that there was something wrong, and that then he should have pursued the method employed by Lewis at the time when the valve was set in upside down. Here it must be remembered that there was no evidence in the case that the valve was ever thereafter improperly set; on the contrary, plaintiff had every reason to believe that the failure of the appearance of the oil was not due to that fact. He merely followed the implicit instructions which he had received, and in following such *480instructions he sustained his injuries. Clearly the issue thus formed on the subject of contributory negligence was one for the jury.

Without treating the other grounds of negligence alleged in the complaint, we are satisfied that the judgment must be reversed. The case was ably and carefully tried. While the court committed error in several particulars, we are satisfied that upon the branch of the case herein considered there is no prejudicial error, and no useful purpose could be served in further extending this opinion.

By the Court. — -The judgment of the lower court is reversed, and the cause is remanded with directions to enter judgment in plaintiff’s favor for the amount found by the jury, with interest and costs.

A motion for a rehearing was denied, with $25 costs, on January 10, 1928.