110 Wis. 532 | Wis. | 1901
The doctrine that it is the duty of the master to furnish his servant with a reasonably safe working place, and reasonably safe tools and appliances with which to do his work, is discussed at considerable length by respondent’s counsel in support of the complaint, but it does not seem that such doctrine applies to the facts alleged. It is elementary that where the dangers of a servant’s working place are as open to his observation and knowledge as to his employer’s,— having regard to the duty of each to exercise ordinary care, and the quantum of care that may be reasonably expected of each, considering the kind of work to be performed,— the servant assumes the risk thereof. The work respondent was employed to do was that of a specialist, the kind he was trained to do. He was not obliged to assume the risk of doing it in the way dictated, or excused for proceeding in that way, so as to hold appellants responsible for the safety of the casing, merely because they directed him to so proceed or assured him that it was safe to do so if he exercised ordinary care. An assurance of safety in such a case is not material except where the person giving the assurance must be presumed to have better judgment or information than the assured, so that the latter may reasonably rely thereon instead of on his own judgment. Showalter v. Fairbanks, M. & Co. 88 Wis. 376; Nash v. C., M. & St. P. R. Co. 95 Wis. 327; Larsson v. McClure, 95 Wis. 533. So, leaving out the allegations that defendants examined the building and knew or ought to have known of the condition
It clearly appears by the complaint that the alleged defect in the casing was not apparent by observation; that it was latent. The allegation that appellants knew or ought to have known of it means no more than that, because they made a careful examination of the building in respect to its
“To maintain an action by a servant against a master for an injury resulting from defective buildings, premises, or appliances, two elements must concur, viz.: fault or knowledge on the part of the master; innocence of fault, or ignorance of the danger, on the part of the servant.” - •
Our conclusion is that the complaint fails to charge more than that defendants ought to have known that the window casing was insecure before sending plaintiff to do-the work in the vicinity thereof, where he was liable to take hold of it for support; that he relied on their duty in that respect without any information that they had tested the safety of the casing, merely because they assured him that, it was safe to do the work in the way directed if he exercised ordinary care; that he did exercise such care in using the casing for support,as he did, because the insufficiency thereof for such purpose was so latent as not to be discoverable by any inspection which he was legally bound to-make. The idea seems to be that the assurance given respondent absolved him from the duty of paying any particular attention to the safety of the casing before using it for support, while it seems that, in view of the dangerous character of the work, such assurance, coupled with the condition that he must use ordinary care, clearly suggested that he should, for himself, inspect the casing, reasonably, as to its suitableness for the use he was to put it to. Instead of
The rule requiring the master to furnish his servant with a reasonably safe working place, calls only for a working place free from all dangers which a person in the circumstances of the master, in the exercise of ordinary care, ought to know of, and which, under the circumstances, the servant, in the exercise of ordinary care, is not legally chargeable with knowledge of. All other dangers which the servant subjects himself to in the line of his employment, either knowingly or ignorantly, he assumes the risk of, whether they are such dangers as are ordinarily incident to the performance of such service, or such dangers as are incident to the work as the master chooses to conduct it of which the servant’s means of knowledge are equal to those of the master, having regard to the quantum of care which the latter is legally bound to exercise for the safety of the former and that which he is legally bound to exercise for his own safety. Jones v. Sutherland, 91 Wis. 587; Erdman v. Illinois S. Co. 95 Wis. 6, 10; Guinard v. Knapp-Stout & Co. Company. 95 Wis. 482, 486; Nash v. C., M. & St. P. R. Co. 95 Wis. 327.
By the Oowrt.— The order appealed from is reversed, and the cause remanded with directions to enter an order sustaining the demurrer and for further proceedings according to law.