Isaacson v. Wisconsin Telephone Co.

138 Wis. 63 | Wis. | 1909

Dodge, J.

The platform in question was very obviously a mere appliance furnished to plaintiff and his co-worker to be retained by them in their possession like other tools and to be used when necessary in accomplishing the work on which they were employed. Goltz v. M., L. S. & W. R. Co. 76 Wis. 136, 44 N. W. 752; Van den Heuvel v. Nat. F. Co. 84 Wis. 636, 54 N. W. 1016; Hoveland v. Nat. B. Works, 134 Wis. 342, 348, 114 N. W. 795; Butler v. Townsend, 126 N. Y. 105, 26 N. E. 1017; Hutton v. Holdbrook, C. & D. C. Co. 139 Fed. 734. It differed in no degree from a ladder with which to accomplish similar work, nor in principle from the climbers to attach to their feet, or the other tools carried by them. It was simplicity itself, at least with reference to the defect complained of. A board platform with four pieces of rope in the comers, which ropes were handled and used by the employees every time they had occasion to use the platform, and of the extent of the use and wear of which they knew better than anybody else, obviously falls within the reason of the rule expressed in Stork v. Charles Stolper C. Co. 127 Wis. 318, 106 N. W. 841:

“This exemption [of the employér] from liability is, we believe, in all cases based upon the condition that the defect and peril are such that no superiority of knowledge in the master over the employee exists or can be presumed. . . . Another qualification of the master’s liability indulged in case of such simple tools and appliances is exemption from a duty to inspect to ascertain the development of defects or disrepair in the course of their use, based also upon the assumption that such conditions are as much within the observation of the employees as of the master, if not more so.”

Whether original insufficiency of so simple and commonly known an article as a piece of rope would cast liability on the employer need not be discussed, for the undisputed evidence excludes such situation. This rope had been furnished and had proved sufficient for several months, during which had occurred, necessarily and of course, some measure of impairment from exposure to weather and from friction and wear. The master, a corporation, having delivered this appliance over to the two men, plaintiff and another, to be kept in their custody and used by them, could gain information of the development of such a defect as the progressive impairment or weakening of the rope only through the eyes of those employees themselves. They knew the extent and frequency of its use and could observe, as no one else could, the development of any such defect in any of the four ropes. No distinction exists between this and the case of a weakened rung in a íadder, a worn handle or a loosened head of a hammer, or a dulled canthook or pinchbax, all of which have been held to fall within the rule above stated. Corcoran v. Milwaukee G. L. Co. 81 Wis. 191, 51 N. W. 328; Holt v. C., M. & St. P. R. Co. 94 Wis. 596, 598, 69 N. W. 352; Borden v. Daisy R. M. Co. 98 Wis. 407, 74 N. W. 91; Olson v. Doherty L. Co. 102 Wis. 264, 78 N. W. 572; Meyer v. Ladewig, 130 Wis. 566, 110 N. W. 419.

The evidence failed to show any failure of duty on the part of defendant on which plaintiff can predicate liability to himself.

By the Cowrt. — Judgment affirmed.