| Wis. | May 20, 1890

Lxon, J.

This case was here on a former appeal from an order overruling a demurrer to the complaint. The order was affirmed. 71 Wis. 553" court="Wis." date_filed="1888-04-17" href="https://app.midpage.ai/document/johnson-v-ashland-water-co-8182859?utm_source=webapp" opinion_id="8182859">71 Wis. 553. It was there held that, under the facts stated in the complaint, the plaintiff was a servant *53of the defendant company when injured. The facts in that behalf, thus alleged, were substantially proved on the trial. It is therefore res acbjudioata, in the case that the plaintiff was such servant at the time, and is entitled to the same protection as any other servant of the 'company. It was also held on the former appeal that, if the proximate cause of the injury was the failure of the company to furnish a sufficient number of men to raise the pipes, the company is liable for the injury, unless the circumstances show that the plaintiff assumed the risks incident to doing the work with an insufficient number of men. And it may be observed here that, with the same qualification, the company is liable in like manner if it failed to furnish suitable and proper implements and appliances with which to do the work, and such failure was the proximate cause of the injury.

The questions first to be determined are: Did the company fail to perform its duty in the matter of furnishing either proper implements and appliances or a sufficient number of men for the work? And if it so failed in either or both particulars, was such failure the direct cause of the injury complained of?

1. All that was required to raise the joint, besides a lever (which was conveniently at hand), were suitable blocks for the pipes to rest upon, and suitable wedges to hold the pipes in position. The testimony is undisputed that the company provided these, thus performing its duty in those particulars.

It is not conclusively proved that the pipes were not properly wedged when plaintiff attempted to raise the joint. Indeed the testimony is very strong, if not conclusive, the other way. But this point is not material in the case, for the reason that, if there was negligence in not properly securing the pipes, it was clearly the negligence of G-andsey, who, for that purpose, was a fellow-servant of the plaintiff, and' not the representative of the company, which had fully *54discharged its duty to the plaintiff in that respect by furnishing proper implements, etc., with which to do the work. Peschel v. G., M. & St. P. R. Co. 62 Wis. 338" court="Wis." date_filed="1885-03-03" href="https://app.midpage.ai/document/peschel-v-chicago-milwaukee--st-paul-railway-co-6604639?utm_source=webapp" opinion_id="6604639">62 Wis. 338. There are many other decisions of this court to the same effect.

The testimony proves conclusively that the company was not in default for not informing the plaintiff of the dangers incident to the employment. These were visible, and any man of ordinary intelligence, in the exercise of ordinary care, although not an expert in the business, could not have failed to see and comprehend them. In such case, the employer is under no legal obligation to warn the servant of danger. This is elementary law.

2. There is some testimony which tends to show that, in the general business of laying down the pipes, there should be two men employed besides the foreman, particularly in putting the pipes on the blocks for calking, and lowering them into the trench. The plaintiff’s witness Jones testified that in order to raise the joints of pipes located as those in question were, and put under them blocks or wedges to hold them in position, “ one man can, with a lever, lift the pipe near the- joint, safely, while the other man is placing a wedge under; one to lift and the other to put a wedge under would be enough for that purpose.” This is just what G-andsey and the plaintiff were doing when the accident happened. Another of plaintiff’s witnesses, one-Eriesenburg, testified that in doing the work he would want three men,— two with a bar each, and one to put under the blocking. But he added.“if one man had a bar six or eight feet long, that would answer.” The plaintiff had a suitable lever with which to raise the joint. He testified that with it he raised the joint easily. Both these witnesses were experts. The plaintiff testified that two men could have done the work if the pipes were wedged. The testimony above stated is all there is on the subject. Obviously, it fails entirely to prove that more men should have been employed to raise the joint of the pipes.

*55Moreover, we do not find any testimony tending to show that, had another man been employed in the work, the accident would probably have been avoided. In the absence of such proof, it is difficult to hold that the failure to employ another man was the proximate cause of the injury complained of.

There being an entire failure of proof that the injury was caused by any negligence of the company in furnishing either men or appliances suitable for the work, and it conclusively appearing that the company was not in default for not informing plaintiff of the dangers of the employment, the court should have directed the jury to return a verdict for the company.

3. The conclusions reached on the other questions in the case render it unnecessary to consider the question of the validity of the alleged release.

By the Coiort.— The judgment of the circuit court is reversed, and cause will be remanded for a new trial.