Manitowoc Boiler Works v. Industrial Commission

165 Wis. 592 | Wis. | 1917

Rosenberry, J.

Sub. (5) (h), sec. 2394 — 9, Stats.:

“Where injury is caused by the failure of the employer to comply with any statute of the state or any lawful order of the industrial commission, compensation as provided in sections 2394 — 3 to 2394 — 31, inclusive, shall be increased fifteen per cent.”

Appellant contends that the findings of the Industrial Commission do not support that part of the award which awards the fifteen per cent, penalty to the widow, and that the evidence does not support the findings. Appellant claims that the Industrial Commission did not in the formal findings find as a fact that the failure to guard was the cause of the injury, and that reference may not be had to the memorandum to supply the defect in the findings.

We think recourse may be had to the memorandum of decision made by the Industrial Commission as a basis for the more formal findings of fact, and from this memorandum it clearly appears that the Commission found that the accident could not have happened in the manner in which it did happen had the wheels been guarded. That the failure to guard the wheels resulted in the death of the deceased in the particular manner in which he did die is clearly found and clearly appears from the evidence. To say that he might or even probably would have been killed in some other manner had the wheels beén properly guarded and that therefore the proximate cause of his injury was his own negligence and not the failure to guard the wheels, is to introduce into the case an element of speculation and to introduce into the administration of the Workmen’s Compensation Act the element of proximate cause as that term was used and understood prior to the adoption of the act, neither of which do we think is permissible. ' An injury is caused by the failure of an employer to guard a machine where it appears as a fact that the particular injury from which the employee suffered would not have been sustained by the employee if the machine had been guarded as required by law, and the employer is liable therefor unless it is caused by a want of ordinary care on the part of the employee which is wilful. The chain of physical causation is complete, and whether or not the failure to guard is the proximate cause of the injury in the sense in which that term is used, in the law of negligence is immaterial. Milwaukee C. & G. Co. v. Industrial Comm. 160 Wis. 247, 151 N. W. 245. Therefore we are of the opinion that the findings sustain the award and that the evidence sustains the findings.

By the Court. — Judgment affirmed, with costs.