156 Wis. 418 | Wis. | 1914
The defendant contends that the trial court erred in denying its motions for a nonsuit and for a direction of the verdict in its favor, upon the grounds that the evidence in the case shows that the defendant furnished plaintiff a safe place of employment and that it adopted and used such methods and processes as were reasonably adequate to render his employment and place of employment safe. The statutes governing the case are embraced in ch. 485, Laws of 1911. The section of this chapter which controls the rights of the parties has been considered in recent cases, and we refer to the case of Rosholt v. Worden-Allen Co. 155 Wis. 168, 144 N. W. 650, for an exposition of those parts that are applicable here. It is there declared:
“Said ch. 485 is applicable beyond any doubt to all employees and all employers in this state, excepting only such as*424 are expressly exempted from its operation. Sec. 2394 — 48 requires every employer, among other things, to fnrnish a place of employment'which shall he safe for employeesSee. 2394 — 49 provides that no employer ‘shall require, permit or suffer any employee to go or be in any employment or place of employment which is not safe.’ Sec. 2394^-41 provides that ‘the term “safe” and “safety” as applied to an employment or a place of employment shall mean such freedom from danger to the life, health or safety of employees ... as the nature of the employment will reasonably permit.’ ”
It is also declared in that ease that these sections, in connection with others there cited, “make some radical changes in the common law as it existed when the act was passed,” and that “the statute in terms imposes an absolute duty upon the employer to make the place of employment as free from danger as the nature of the employment will reasonably permit, and in the absence of contributory negligence the liability of the master follows as a matter of course if this duty is not performed and injury results to the employee because it is not performed.” See, also, Tallman v. Chippewa S. Co. 155 Wis. 36, 143 N. W. 1054. The jury found that the defendant failed to furnish plaintiff a place of employment' in which to perform his duties in making the repair on the paper machine which was safe, and that this failure on its part proximately caused the plaintiff’s injuries. The trial court held that the evidence sustained these findings. The question is, Did the court err in holding that the evidence in the case sustains these findings? It is alleged that defendant failed to furnish the plaintiff a safe place of employment and that it required, permitted, and suffered him to go and be in a place of employment which was not safe because the paper machine was not stopped while plaintiff was required to repair the guide board, or felt guide, as described in the foregoing statement. This statement shows the nature of the repair the plaintiff was engaged at; the condition of the place on the machine where he stood; the method employed to perform
It is urged that the plaintiff was a millwright, and as sucl it devolved on him to have the machine stopped if that wl necessary to provide him a safe place of employment, heretofore stated, he was a subordinate to the manager superintendent and under the express direction of the supei| tendent to make this repair. Under these relations of l employment and the circumstances of the case, it is appaa that his conduct in mounting the machine to make the re]
Since assumption of the risk is no defense, it remains to inquire whether or not the plaintiff was guilty of contributory negligence as a matter of law. The evidence shows that his superiors in authority evidently did not regard the stopping of the machine as necessary to make the place of the plaintiff’s employment as safe as the nature o? the employment would reasonably permit. As we have pointed out, their conduct in this regard was a subject for inquiry by the jury, who found them guilty of a breach of duty in requiring, permitting, or suffering the plaintiff to go and be in an unsafe place under the statutory regulations governing this case. In the light of all the facts and circumstances, it cannot be said the plaintiff was guilty of contributory negligence as a matter of law in going and being in this place to make the repair in question without first requesting the machine to be stopped, nor do the facts show as a matter of law that he was negligent in the way he descended from his position on the machine and when his hand was caught between the rollers. An uncertainty as to the plaintiff’s contributory negligence inheres in the case which requires that it be submitted to the jury. Klotz v. Power & M. M. Co. 136 Wis. 107, 116 N. W. 770. The court properly submitted this question to the jury, who resolved it in the negative.
We have examined the exceptions respecting the court’s rulings on evidence and find that no prejudicial error was committed by the court. Upon the facts adduced in evidence the jury were authorized to find that the defendant failed in performing its duty toward the plaintiff in the respects here-inbefore indicated, which proximately caused the plaintiff’s injuries, and that he was free from contributory negligence;
By the Oourt. — The judgment is affirmed.