Kosidowski v. City of Milwaukee
139 N.W. 187
Wis.
1913
Check Treatment

*225The following opinion, was filed December 10, 1912:

Makshall, J.

The dominant question on this appeal is whether a case was made within sec. 1636—81, Stats. (Supp. 1906: Laws of 1901, ch. 257). That is ruled in respоndent’s favor by the reasoning and result in Koepp v. Nat. E. & S. Co. 151 Wis. 302, 139 N. W. 179. The legislative purpose of the statute is there definitely declared. There is nо need of going over the ground again. By the broad meaning ■of the section, as intended by the lawmakers, and determined in the highest court of the state where the enactment originated, Caddy v. Interborough R. T. Co. 195 N. Y. 415, 88 N. E. 747, the facts of this case are covered.

Looking at the language in the comprehensive sense in which it was doubtless used, the work, the appliance, and the creation the work was being expended upon are readily seen to be within its ‍​‌‌​​​​‌‌​​​​​​​‌​‌‌​​‌​‌​‌​​‌‌​​‌​​‌‌‌​‌​‌​​​​​‍scope, though, ’tis true, if it were necessary to carry out the indent of the lawmakers, such language could be viewed so restrictively as to exclude the particular circumstances here.

The written law in quеstion covers three phrases: 1st, the labor, — “any kind in the erection, repairing, altering or painting;” 2d, the subject of the wоrk, — “a house, building ■or structure;” 3d, the instrumentality used, — “scaffolding, hoists, stays, ladders or other mechanical contrivances.” The “person employing or directing another to perform” any of such labor is required not to “furnish or erect, or cause to be furnished or erected for the performance of such labor” any ■of the instrumentalities which shall be “unsafe, unsuitable or improper” and “not so constructed, placed and operated as to give proper protection to the life and limb of a person so employed or engaged.”

That the derrick was within the prohibited instrumentalities does not admit of a question. It was characterized by *226some very serious infirmity else it would not bave fallen in a complete wreck, as was the case. The setting up of the new water main was erecting within the broad sense of the term. Such term includes any work of creating a particular thing out of parts. The call for “altering” also satisfies the cаse. An addition to an existing ‍​‌‌​​​​‌‌​​​​​​​‌​‌‌​​‌​‌​‌​​‌‌​​‌​​‌‌‌​‌​‌​​​​​‍water main is “altering” and quite plainly so. The thing worked upon, to wit, the water-works system, was a “structure.” A structure may be below the surface of the ground as well as above. It may be erected or altered in one plаce as well as in another. Any artificial creation is a structure, — such as a canal, Pacific R. M. Co. v. Bear Valley Irr. Co. 120 Cal. 94, 52 Pac. 136; a fence, Karasek v. Peier, 22 Wash. 419, 61 Pac. 33; a mine, Helm v. Chapman, 66 Cal. 291, 5 Pac. 352.

By the process of reаsoning leading to the conclusion in the former case it seems quite clear that the legislative language in question was intended to include all such work and appliances as are involved in this case, and that the reasonable scope thereof goes that far. Any resort to subsidiary rules for construction to restrict the meaning would result in defeating thе will of the lawmaking power instead of giving full effect thereto. The latter is a judicial duty and should be,, as it is, judicial pleasure.

The mere change of viewpoint, as indicated in the former case, necessary because of a chаnge of conditions in order to obtain an accurate view of the legislative will, eliminates any reason for indulging in the rule of ejusdem generis and other rules which have in times past been the pathway for discovering the intent of written law, and turns to the broad libеral construction which accords meaning to each phrase of the enactment to the extent of ‍​‌‌​​​​‌‌​​​​​​​‌​‌‌​​‌​‌​‌​​‌‌​​‌​​‌‌‌​‌​‌​​​​​‍the reasonable scope of its descriptive words. Each in the series, used disjunctively,, stands independently of any other, the whole encompassing the broad field which the legislature manifestly intended to' reach.

*227Tbe New York court in Caddy v. Interborough R. T. Co., supra, spoke very emphatiсally on the subject here briefly discussed, using this language, particularly as regards the word “structure:”

“We incline to the view that the rule of ejusdem generis does not apply” to rеstrict the word “structure” by reference to the word “building.” “The word ‘structure’ in its broadest sense includes any production or piece of work artificially built up or composed of parts joined together in some definite manner. ... In cases like this, lexicographers’ definitions are useful as guide posts, but they do not take us to our destination. The statutory meaning of а word or phrase must be gathered from the purpose for which the law containing it was enacted.” The “evil sought to be remedied by a statute designed to charge the master with a more rigid and personal responsibility” gives direction to the judicial mind in determining the intent and extent of the effort.

Such is the letter and spirit of the- judicial reasoning ‍​‌‌​​​​‌‌​​​​​​​‌​‌‌​​‌​‌​‌​​‌‌​​‌​​‌‌‌​‌​‌​​​​​‍in the home of the lеgislation under consideration.

Nothing further need be said respecting the important matter presented. Most other mаtters are eliminated by the result of the major question. The rest have received due consideration without discovеring any prejudicial error, so it seems best to conclude without treating them in detail.

The case should not be confused with such a situation as was dealt with in Hutton v. Holdrook, C. & D. C. Co. 139 Fed. 734,— one where safe material was furnished for an1 erection and the work of produсing the appliance was left to the servants who were required, as they proceeded, from time to time, to take down and re-erect. Here the appliance was the derrick. It was furnished as used. It was inherently unsafe. That ‍​‌‌​​​​‌‌​​​​​​​‌​‌‌​​‌​‌​‌​​‌‌​​‌​​‌‌‌​‌​‌​​​​​‍is evidеnt. The fault was not in the mere placing of it to handle the particular piece of pipe, but in the thing itself. The fact, if it be a fact, that by ordinary rules appellant was free from want of ordinary care in respect to the character of the derrick, is immaterial. By force of the *228statute, tbe master was responsible for tbe infirmity wbicb caused tbe instrumentality to fall to pieces. Sucb was tbe purpose of tbe statute. Tbe legislature bad a right to place tbat burden on tbe employer if it saw fit. Having done so, it is not witbin tbe competency of tbe court to afford relief by judicially lifting sucb burden. Tbe responsibility is with tbe lawmaking power and tbe appeal must be made in tbat forum.

By the Court. — Tbe judgment is affirmed.

TimliN, J., took no part.

A motion for a rebearing was denied, with $25 costs, on February 18, 1918.