156 Wis. 544 | Wis. | 1914
The chief contention of the defendant is that plaintiff was guilty of contributory negligence as a matter of law in stepping south of the horizontal timber to clean out and fill the oil box and attend to the grease cup, as in doing so he placed himself in close proximity to the revolving shaft. It is claimed that he could have stood in a perfectly safe place by remaining in the passageway and cleaning out the oil box by reaching partly around the upright timber. That the box as well as the grease cup could have been safely attended to by standing in the passageway is unquestionably true. But that was not always the customary place used in oiling and apparently for two reasons: first, because teams were often in the passageway, preventing that place from being used; and second, in cleaning out and attending to the oil box from that position it was necessary to reach in around the upright timber. A person standing in the place plaintiff did, directly faced the oil box and was in a better position to see and attend to his work, though not in such a safe place. The grease cup and oil box required oiling twice a day and it was plaintiff’s duty to attend to them. At the time he was injured there was a team in the passageway, so he stepped over the horizontal timber to do his work. He says he was careful to keep away from the shaft, and that he did not know of the set-screw. He also says there was more or less coal dust in the air where he stood. The evidence shows that it was customary to oil from where plaintiff stood when teams were interfering with doing it from the passageway, and had been for several years past, and that such custom
He undoubtedly assumed the risk of the dangers that by the exercise of ordinary care were open and visible to him where he stood, including the revolving shaft. .But the defense of assumption of risk is abolished by the statute. Sec. 1636jj, Stats. So the only defense left on this branch of the case was contributory negligence. That there may be an assumption of risk and absence of contributory negligence is well settled by our decisions. Murray v. Paine L. Co. 155 Wis. 409, 144 N. W. 982, and cases cited.
Exception is taken to the admission of evidence that former employees of defendant stood where plaintiff did in oiling, and particularly to the testimony of one Risch, who said he stood there when oiling in and prior to March, 1910. Plaintiff had been employed as oiler for about fourteen months, so it was necessary to go back some considerable time to ascertain what was done before he began his duties. We think the evidence objected to was competent to show that the setscrew was so located as to be dangerous to employees in the discharge of their ordinary duties, as well as upon the issue of where employees, to the knowledge of defendant, ordina-rilv stood when oiling.
By the Court. — Judgment affirmed.