Jahn v. Northwestern Lithographing Co., 157 Wis. 195

Jahn v. Northwestern Lithographing Co.

157 Wis. 195 | Wis. | 1914

Winslow, C. J.

The appellant claims that a verdict for the defendant should have been directed because (1) there is no evidence that defendant failed to furnish plaintiff a reasonably safe place to work, or that such failure proximately caused the injury; (2) the plaintiff was guilty of contributory negligence as matter of law. These contentions will he briefly considered.

1. It is admitted that, it was plaintiff’s duty to be present to operate the engine at the time of the accident. Under sec. 2394 — 48, Stats. 1911, the defendant was required to furnish the plaintiff a safe place of employment and also not to permit or suffer him to go or be in any employment or place of employment which was not 'safe. Whether the defendant failed in the performance of these duties, and, if so, whether such failure was the proximate cause of the plaintiff’s injury, were clearly questions for the jury.

2. Probably, under his own evidence, the plaintiff assumed the risk of the back-firing of the engine, because he knew of the change in the pipe and called the attention of his superior to the fact, but this defense was abolished by sec. 2394 — 1, Stats. 1911, and it does not appear as matter of law that the plaintiff was guilty of any affirmative act which could properly be called contributory negligence. Whether he was so guilty was properly a jury question.

3. The appellant objects to the form of the third question because it assumes without proof that the defendant company permitted the intake pipe to remain temporarily where it was. It is undisputed, however, that the defendant permitted the plaintiff to work about the open pipe in violation of the statutory provision hereinbefore cited, and it is found by the answer to the fourth question in effect that this fact proximately caused the plaintiff’s injury, hence the error, if any, was not prejudicial.

4. We do not regard the claim that the damages are excessive as well founded.

By the Court. — Judgment affirmed.