McNear v. Mitchell-Lewis Motor Co.

151 Wis. 286 | Wis. | 1912

Siebecker, J.

It is contended by the defendant that the evidence does not sustain the finding that the failure to equip the oven here in question with a pipe and flue connecting its interior with the outer air to carry off the products of combustion and the smoke and fumes was the& proximate cause of the explosion, and it is averred that it was proximately caused by the manner of operating the oven, and that such operation of the oven, even bad it been equipped with such a pipe and flue, would have been as dangerous as it was as actually constructed. It appears reasonably clear that if the oven had been equipped with these pipes and flues, the products of combustion, the smoke and fumes,x and the unconsumed gases would have escaped through them from the oven to the outer air. There is opinion evidence to the effect that the oven with such an equipment of pipes and flues would have operated more efficiently than without this equipment, for the reason that it would have improved and increased the draft and thus have removed any undue accumulation of such gaseous products from the oven. It seems that these inferences naturally followed from the facts and circumstances shown.

It is however insisted that the deceased knew, and under the facts shown must be held to have known, of the dangers incident to operating the oven by closing, or nearly closing, the top vent, as was done, and thus smothering the burning gas in this confined space. The facts and circumstances bearing on the deceased’s knowledge of the danger of so operating the oven are not all one way on this question. The fact that the defendant furnished this appliance in a defective condition and directed the deceased to operate it as it was, implied that the defendant regarded it as safe for its purpose. It also appears that the deceased was referred to Mr. Wade, the foreman of the painting department, for instructions as to the operation of the oven and the performance of the duty of conducting the enameling process in the oven so furnished him. Nothing appears to show that he was informed by Mr. Wade •of the danger that gases and fumes might collect in the oven and extinguish the burning gas if they were not carried off through vents. It appears that he complained to Mr. Wade that the fire had gone out while the oven was in operation and that he was told to see the person in charge of the gas appliances for defects in the gas fixtures. This clearly indicates that Mr. Wade and the deceased had not thought that the manner of operating tbe oven caused tbe fire to be extinguished. It also appears tbat for some two months tbe oven bad been operated as it was on tbe night of tbe explosion, and, except for tbe few times mentioned, tbe fire bad kept alive throughout tbe usual period of from three to three and one-half hours, tbe time required to complete tbe baking of tbe enamel on tbe parts placed in tbe oven. Tbe facts tbat tbe deceased directed tbat tbe oyen doors should be opened for five minutes after tbe fire went out before it was relighted and tbat be warned others not to go near it with lighted pipes and lanterns do not indicate tbat be knew what caused tbe gas to cease burning, but only tends to show that be understood tbat when tbe oven was filled with unconsumed fuel gas it was liable to explode upon ignition. Tbe facts and circumstances of tbe case warrant tbe inference tbat tbe deceased was not informed of tbe fact tbat tbe smoke, fumes, and gases emanating from tbe heated material in tbe oven and combustion might, under tbe existing conditions, smother tbe burning fires. Hence it was proper to submit this question for determination by tbe jury.

It is contended tbat the deceased must be held to have known tbat gas mixed with air is highly explosive upon ignition and tbat such a mixture would accumulate in tbe oven after tbe burning gas fire bad become smothered and extinguished under tbe conditions under which this oven was being operated, and tbat therefore be was not entitled to be warned of such a danger; but tbat be assumed tbe risk of an explosion as a hazard of bis employment, and hence tbat no recovery can be bad for bis death. Tbe assumption tbat be must be held to have known tbe danger of explosion from gas mixed with air does not, under tbe circumstances of the case, establish tbat be assumed tbe risk thereof, unless tbe evidence conclusively shows tbat be knew, or ought to have known, of tbe existence of the gas in tbe oven at tbe time of accident. It appears, as indicated heretofore, tbat this danger does not accompany tbe operation of such an oven if it is properly constructed and operated. It is therefore not a hazard necessarily inhering in a properly conducted business. We have also shown that it was for the jury to determine whether the deceased knew, at the time of the accident, that the manner in which this oven was being operated would cause the smoke, fumes, and gases to accumulate therein and extinguish the burning fire, and that the jury were justified in negativing this inquiry. The appellant asserts, however, that the deceased, as a man of ordinary intelligence, knowledge, and experience in running this oven, must be presumed to have known of this danger, and hence assumed it as a risk of the business. This contention proceeds upon the assumption that the vent or escape at the top of the oven was wholly closed, and that.when so closed it prevented a sufficient draft to supply air and oxygen to maintain combustion in the chamber. The evidence, however, is not conclusive on these points. It does not appear that the vent was wholly closed or that the draft to supply air was wholly checked; but it affirmatively appears that the oven was being, operated on this evening as it had been operated ever since its installation, and that it usually had operated successfully. These facts and circumstances of the case do not permit the conclusive presumption of fact on which this contention rests, and hence the contention must fail.

But it is claimed that if this presumption does not prevail, still it must follow that tlie deceased was, under the existing conditions, apprised of tbis danger as an incident to operating the oven. Reliance as to this point is placed on the facts that he ordered his men not to go near the oven with an unprotected light, that, to avoid using matches, he ordered an incandescent light to be placed near the thermometer, that he expressed fear of the ovens, that he told those under him, whenever the fire in the oven went out, to open the front doors for five minutes before relighting the gas, and that, as to such an explosion, he had previous experience with a small enameling oven while conducting a bicycle repair business. This claim is not well founded, even conceding that all these facts appéar, for they do not show that this danger was one necessarily incident to the employment of operating a properly constructed oven, and because the jury, upon the evidence adduced, had warrant to find as a fact that the deceased at the time of,the accident did not know that this dangerous condition actually existed. It is, however, claimed that ignorance of these conditions cannot excuse the deceased, because it conclusively appears that the danger of explosion was a hazard inhering in the conduct of the business under the existing conditions, and that the deceased, as a man of ordinary intelligence and experience in such matters, knew, or must be held to have known, of its existence when he approached the oven with a lantern on the night in question. True, as claimed, the master may conduct his business in his own way, although another is less hazardous, and the servant assumes the risks thereof if he knows the dangers attending it. The deceased, however, was found to have been ignorant of the existing danger, and, upon the grounds already given, it cannot be held that he ought to have known of it. Hence he did not assume the risk.

The claim is urged that, if the case presented does not' establish that the deceased assumed the risk of the danger which caused his death, it follows from the evidence as matter of law that he was guilty of contributory negligence. Many of the facts involved in the foregoing discussion of the assumption of risk bear on this inquiry, and what was there said as to their legal effect applies to this question. The jury have exonerated the deceased of the charge of any want of -ordinary care which proximately contributed to his death. In addition to the facts heretofore considered, the evidence of the watchman as to what took place immediately preceding the explosion is important as bearing on this issue. It appears that this watchman was on his round of duty and had just completed turning off tbe gas from this oven and erasing the chalk marks from the oven door when the deceased appeared in an automobile. The watchman called to him to wait for him to switch on a light. This he immediately proceeded to do by turning a switch, but the light was not near the door and he turned another switch. Deceased then spoke, saying that it would do, and he thereupon got out of the car, went toward the oven, taking the watchman’s lantern from the floor in front of the oven, and went to the place at the side of the oven where the thermometer was' located and held up the lantern to enable him to read the thermometer. In about a minute, as the watchman states, the explosion occurred. The watchman also states that the air was charged as usual with smells of the shop and oven, but that he did not distinguish the odor of unconsumed fuel gas. The chalk mark on the oven door, indicating that the gas was to be turned off at 9 :30 o’clock, was erased. After the explosion the deceased’s watch was found on his person and it was found to have stopped at 9:35 o’clock. Deceased’s conduct in going to the opening in the side of the oven and in holding the lantern near the opening where the thermometer was located must be judged in the light of his knowledge of the existing danger. It appears that the time for turning off the gas had expired and that the gas had in fact been turned off. This naturally would lead the deceased to infer that conditions were normal and that there was no gas in the oven. The watchman’s lighted lantern, the absence of a gas smell, and all the conditions as described by the night watchman, also indicated that no unconsumed gas had been discharged into the oven and that none had escaped into the room where the deceased and the watchman were. Under such conditions it cannot be held as matter of law that the deceased was apprised of the dangerous situation. -His conduct clearly implies that he was acting on the assumption that his environment was free from impending danger, and he undoubtedly thought the fire in the oven had continued to burn as usual until the watchman turned off the gas. In the light of his want of knowledge of the existing dangerous condition of affairs his conduct was that of an ordinarily prudent man. Furthermore, if we assume that he should have anticipated that the fire might possibly have been smothered in the operation of the oven, that cannot control in this case,, because nothing was there to suggest to him the presence of gas, and therefore he had the right to act on the assumption that combustion had continued to the time the watchman turned off the gas. The nature of the acts and the conditions relied upon to show that the deceased was guilty of a want of care are not so clear as to show it per se. That fact can only be determined by a consideration of all the facts and surrounding circumstances of the case. It therefore properly comes within the province of the jury and their determination must control. We find no reversible error in the case.

The rules of law governing the case are elementary and so well understood that citation of authorities is unnecessary.

By the Gowrt. — The judgment appealed from is affirmed.

.Winslow, C. J., and Mabshaul and Barnes, JX, dissent.