39 N.W.2d 386 | Wis. | 1949
Plaintiff, a boy of seventeen years, was injured while oiling a corn-rehusking machine owned and operated by the defendant on its farm. The judgment for damages is based upon a jury verdict finding the defendant guilty of negligence in furnishing plaintiff with a safe place of employment. Defendant appeals.
During the trial the court admitted evidence of William F. Renk and A.A. Soldner, assistant director of the industrial commission. The testimony adduced by these witnesses was to the effect that the corn rehusker upon which the plaintiff was injured could have been made more safe. Soldner was permitted to testify as to the safety orders and requirements of the industrial commission with respect to belts, chains, and shafts upon similar machines.
Near the close of the trial the court determined that the defendant was engaged in farming and that the "safe-place statute" did not apply. The defendant thereupon moved the court to strike the testimony of Mr. Renk and to instruct the jury that the testimony with respect to the industrial commission's requirements and orders did not apply. The motion was denied.
Defendant requested the court to instruct the jury that the defendant's duty under the common law was to provide a reasonably safe place of employment. The instructions given by the court upon that subject are: *440
"The court ruled at the conclusion of all the evidence, that the safe-place statute was not involved in this case, but that this was a question to be submitted to the jury on the issue of the negligence, if any, of the defendant, and the negligence, if any, of the plaintiff. The reasons for the court's ruling were: (1) The safe-place statute does not apply to farming; (2) the supreme court has held that hybrid-corn producing is farming; (3) upon the facts in this record, the corn operation was farming. Therefore, the safe-place statute is out of the case and industrial commission orders under the safe-place statute are out of the case because industrial commission orders under the safe-place statute have no application to farming. The question tendered to the jury, I repeat, is whether there was negligence on the part of the defendant or negligence on the part of the plaintiff, or both.
"Negligence is a want of ordinary care.
"By ordinary care is meant that degree of care which the great mass of mankind, or the type of that mass, the ordinarily prudent man, exercises under like or similar circumstances.
"Every person is negligent when, without intending to do any wrong, he does such an act or omits to take such a precaution that, under the circumstances present, he ought reasonably to foresee that some injury or damage might probably result from his conduct. He is in duty bound to foresee all such natural consequences of his conduct as an ordinarily prudent and intelligent person would ordinarily foresee under the then present circumstances." The trial court has the duty of giving the jury instructions adequate to enable it to intelligently perform its function. We are of the opinion that the failure of the court to give an instruction to the jury which would apprise it of the duty which the defendant owed to the plaintiff constitutes prejudicial error requiring a new trial. *441
The jury's finding that the defendant was negligent in the discharge of its duty toward the plaintiff is meaningless because no definition of the duty was given.
What test did the jury apply in measuring defendant's conduct? Under the safe-place statute an employer must furnish a place of work which is as free from danger as the nature of the employment will reasonably permit, and not merely a "reasonably" safe place, as at common law. Rosholt v. Worden-AllenCo. (1913),
It was also error to admit the testimony with respect to the industrial commission orders. The determination of whether the operation was farming or an operation subject to safety regulation should have been made before rather than after receipt of such testimony.
Defendant contends that the negligence of the plaintiff is equal to or greater than the alleged negligence of the defendant. We are unable to agree with that contention. We are of the opinion that the testimony in this record presents issues for a jury under proper instructions of the trial court.
Other minor errors are assigned which we deem unnecessary to comment upon since a new trial is necessary and they will undoubtedly not recur.
By the Court. — Judgment reversed and cause remanded for a new trial.
BROWN, J., took no part. *442
