Herring v. E. I. Du Pont de Nemours Powder Co., 139 Wis. 412

Herring v. E. I. Du Pont de Nemours Powder Co.

139 Wis. 412 | Wis. | 1909

Dodge, J.

There being evidence that, by reason of tbe inherent characteristics of tbe earthenware spigot, tbe core or plug thereof was liable to be raised in its socket by tbe upward pressure to which it was subjected, that by sucb raising was rendered possible and probable tbe escape of acid in sucb a way as to endanger those necessarily working about -such spigot, and that tbe device intended to prevent sucb rais*416ing was, by reason of wear and other surrounding circumstances, likely to fail of its purpose, we deem it clear that a. situation was shown which the jury might have deemed inconsistent with that degree of care owed by the employer in a business dealing with such dangerous substances. There-remains of the plaintiff’s case, therefore, only the question of proximate cause. We have no doubt of the tendency of the evidence to establish actual causation, and that the injury was within anticipation by a reasonably prudent and intelligent person, except for the consideration that extreme care in. the adjusting of the chuk would probably have protected' against any such injury. The duty of such adjustment, several times daily, rested upon a co-employee. There is no-evidence that he did or did not carefully perform that duty on the present occasion. If he did, and the injury nevertheless occurred as the result of the defects, the proximate causal relation would of course be obvious. If, however, the defects were effective only in conjunction with the negligence-of a fellow-servant, the defendant’s responsibility is 'no less certain under the law as fully established in this state. Jones v. Florence M. Co. 66 Wis. 268, 284, 28 N. W. 207; Sherman v. Menominee River L. Co. 72 Wis. 122, 128, 39 N. W. 365; Cowan v. C., M. & St. P. R. Co. 80 Wis. 284, 291, 50 N. W. 180; Grant v. Keystone L. Co. 119 Wis. 229, 237, 96 N. W. 535; Howard v. Beldenville L. Co. 129 Wis. 98, 113, 108 N. W. 48; Beach, Contrib. Neg. § 304.

There thus being evidence from which the jury might have found the defendant’s negligence and its proximate causal relation with plaintiff’s injury, the next question for consideration is whether the evidence conclusively establishes plaintiff’s contributory negligence either by way of assumption of the risk or by any affirmative act. There is evidence tending to show that plaintiff, while expert in his knowledge of such mechanical appliances elsewhere in the factory, was uninformed of the inadequacy of this particular overhanging chuk; also, *417that he was ignorant of the particular danger arising from the hydrostatic pressure of the liquid in the pipe, either as an influence to raise and loosen the plug or to cause the spurting of the acid. There is nothing in the surrounding physical facts to render incredible the first allegation of ignorance, nor do we think that the ordinary mechanic, though chargeable with knowledge of the physical structure of such an appliance, must irrefutably be presumed to have realized that the fact of the acid being brought from an elevation of several feet would produce pressure enough either to raise and loosen the plug or cause the spurting of the acid. It was an event which is not shown to have ever occurred in the factory, and one of which the probability became apparent only upon application of somewhat abstruse and special knowledge of hydrostatics, which we think is not necessarily and as matter of law attributable to the great mass of mankind circumstanced as plaintiff was. Reasonable minds might well differ upon the question, and therefore whether such a plaintiff assumed the risk.

Whether plaintiff is shown to have been guilty of affirmative acts of contributory negligence is perhaps a question of more doubt. True, it was his act in mounting the stool which brought his face in a position near the spigot from which his injury might result. True, also, it was possible to have escaped such danger by a trip to the tank in which the acid was stored some eighty feet away and outside the place of his work and there cutting off the flow of the acid through the pipe, though to somewhat serious interruption of the manufacturing process in hand. But that his act in mounting the stool and bringing his face over and near the spigot should be negligence it must have occurred under such circumstances that an ordinarily prudent and intelligent man would have foreseen at least the probability of some injury. The act. itself was one required to be done many times daily in the performance of the work imposed on plaintiff and his *418co-worker. If, as we have concluded in discussion of the assumption of the risk, it is credible from all tbe evidence that plaintiff or any other man of ordinary prudence and intelligence under like circumstances might have been unaware that there was any danger of the forcible escape of acid so as to imperil him, then it is not conclusively established that the act of ascending the stool was negligence at all, or that it had proximate contributing effect toward his injury. We think the evidence is not conclusive either that he did know or that as an ordinarily prudent person in his circumstances he should have known or foreseen that there was any such peril. We are persuaded that at the close of plaintiff’s case the,evidence was sufficient, unqualified and unexplained, to support a verdict for plaintiff on all of the issues and that the non-suit was erroneous.'

The printed case is not confined to matters necessary to present the questions raised, and is in no sense an abridgment of even that, as required by Supreme Court Rule 6. Its prolixity has necessitated much needless and wasteful expenditure of the time of the court which ought not to be diverted from more important duties. Rule 44 prohibits costs for printing such case.

By the Court. — Judgment reversed, and cause remanded for a new trial: no costs for printing case.

Marshall, J., dissents.