Miller v. Kimberly & Clark Co., 137 Wis. 138

Miller v. Kimberly & Clark Co.

137 Wis. 138 | Wis. | 1908

Maeshall, J.

It is conceded, as the fact is, that if appellant violated sec. 1636/, Stats. (1898), requiring shafting “so located as to be dangerous to employees in the discharge of their duty” to be “securely guarded or fenced,” then it was guilty of negligence rendering it liable in this action if such negligence was the proximate cause of the injury respondent received without any want of ordinary care on his part contributing thereto.

It is beside the case to argue, as counsel for appellant do in their brief, that the shaft, at the point where the injury was received, was not so located as to be dangerous to appellant’s employees “in the discharge of their ordinary duties,” particular significance being given to the word “ordinary.” If the employees, from the standpoint of the master in the exercise of ordinary care, were required in the course of their employment to go about or over the shaft and so come in dangerous proximity thereto or contact therewith, whether the duty was ordinary or exceptional, the situation was within the statute. The law is cast in general terms. We cannot interpolate into it the word “ordinary,” and test appellant’s conduct by a different standard than the legislature, in the proper execution of its police power, created. Such limitation upon the duty to guard as might be indicated by the word “ordinary,” if it were in the statute modifying the word “duty,” the legislature manifestly did not intend should exist, *143from the fact that the word was industriously, by amendment, dropped from the law as it formerly existed; the words “discharge of their duty” being substituted for “engaged, in their ordinary duties.”

Again, it is beside the case to argue, as counsel do, with numerous supporting authorities, that such a statute as the ■one in question does not apply where the shafting is suspended so high above the working place of the employees as to render it improbable that they will come in dangerous proximity thereto in the discharge of their ordinary duties. ■Such authorities as Powalske v. Cream City B. Co. 110 Wis. 461, 86 N. W. 153; Cobb v. Welcher, 75 Hun, 283, 26 N. Y. Supp. 1068; Dillon v. National C. T. Co. 181 N. Y. 215, 73 N. E. 978, and the like, upon which counsel rely, at this point, are all very good in their legitimate field. They apply to a situation where the employees would have to so depart from- their ordinary movements in performing their work, in order to reach the dangerous machinery, that no one in the -exercise of ordinary .care would be likely to anticipate such an occurrence; as where a shaft is so located at a considerable distance above the level reached under any circumstances likely to occur, by employees whose duties are performed while standing or moving about on the floor. ‘ The mere fact, in such a case, that an employee might possibly ascend to the ■shaft by means of a ladder or otherwise, for something of an exceptional nature, does not locate such shaft within the meaning of the statute. As said in the Poivalslce Case, “where a danger is so located that a person must necessarily go out of his ordinary course, or any course which he might be reasonably expected to take, in order to reach it, ordinary care and prudence on the part of another, who is in duty bound to guard him from personal injury within the scope •of the risk to be reasonably apprehended therefrom, does not require it to be guarded.”

The statute does not require the employer to anticipate *144every possible danger to employees; as that one might for some purpose not reasonably to be foreseen go to an uncovered shaft suspended twelve feet or more above the working floor. So, as indicated in the case cited, “if it would not be reasonable to say, on the facts of this case, that the shafting in question was so located that respondent, in the exercise of that care for the safety of its employees which is contemplated by the statute,” that is in the exercise of ordinary ¿udgmént, under the circumstances, ought to have apprehended that it might cause a personal injury to some one of' them, there was no violation of the statutory duty by failure to guard the shaft; the question of fact, of course, being for the jury, if, upon the evidence, different minds might reasonably come to different conclusions in respect thereto.

What has been said, in view of the undisputed fact appearing by the statement, shows that there was evidence to go to-the jury as to whether appellant breached its statutory duty or not, which disposes of counsels first and most significant contention. Although the shaft was supported so far above-the working floor as to be beyond the reach of employees in the discharge of their duties thereon, they had others, which required them occasionally, as appellant must have known, to mount and walk upon the suspended timber in the vicinity of' the uncovered shaft, armed with the defective collar that was an essential part thereof. As regards such duties the danger was rather greater, on account of the imperfect set-collar, than it would have been had the shaft rested upon supports raising it a foot or two above the floor. Such being the case, there was fair ground for holding appellant ought reasonably to have apprehended that the condition of the shaft endangered the safety of employees, and was within the statute.

The second proposition presented for consideration is that the defect in which respondent’s overalls was caught was the-proximate cause of the accident, instead of failure to comply with the statutory requirement, and the finding of the jury *145on that branch of the case is without support, since the question in regard thereto was directed to the uncovered shaft, instead of the imperfections in the set-collar, which, according to the evidence, did the mischief, and, for aught that appears, may have existed for so short a time that want of ordinary care on the part of appellant could not be predicated thereon, there being no evidence to charge it with actual knowledge thereof. That at first blush seemed difficult to meet. Probably, had it not been for the condition- of the set-collar, the accident would not have happened. It may be that, if proof had been produced that the collar was originally free from the dangerous defect, it would have been incumbent on respondent to prove actual or constructive knowledge of such defect "for a sufficient length of time before the accident to have enabled appellant to remedy the same. The collar, as indicated, was essentially a part of the shaft. While there was no proof as to how long the defect had existed there was none that it did not characterize the original construction. It was a defect, so far as appears, which did not affect the efficiency of the device or necessarily develop by use. It was incumbent on appellant, in the first instance, to show that the imperfection did not enter into the original construction, rather than on respondent, as the case stood, to prove there was negligent failure to repair. So it was proper to send the case to the jury on the question of negligence and that of proximate cause as well, on the theory that the shaft was to be regarded as including the set-collar and having been, from the start, in the condition it was found on the day of the accident.

The next proposition submitted for consideration is: Was the respondent guilty of contributory negligence, as a matter of law, in starting from his position near the uncovered shaft to go to the point for throwing off the belt, taking a' course which required him to step over and come in dose proximity to the point of danger, instead of one safely *146distant therefrom. Tbe claim on this branch of the case is that there was an obviously safe course which respondent-might have taken, and yet he carelessly chose another and an unsafe way. If that were unmistakably borne out by the evidence, it would be difficult to avoid reaching the conclusion for which counsel for appellant contend. The infirmity is in this: There is considerable conflict as to whether there were not interferences rendering any other way than the one chosen, quite as dangerous as that, while the evidence, as indicated in the statement, conclusively shows, or tends to show, that respondent proceeded in the way pointed out to him as the proper one by the person to whom he was referred for instructions when he commenced work. In that situation it cannot be rightly held that the court erred in submitting the question of contributory negligence to the jury. At least there was room for different minds to reasonably differ in respect to the matter,' which by familiar rules required interference by the jury to properly determine the controversy. It is not entirely clear but that, since the way respondent took was not so obviously and imminently dangerous that one could not reasonably submit himself thereto without expecting he would probably be injured, and he proceeded as he and his helper, who had been pointed out to him by the master as experienced in the matter, had been accustomed to, the major probabilities, at least, are clearly against contributory negligence.

At this point counsel refer to such authorities as Sladky v. Marinette L. Co. 107 Wis. 250, 83 N. W. 514, and Connors v. Merchants’ Mfg. Co. 184 Mass. 466, 69 N. E. 218, holding, as a rule, that if an employee omits to pursue the usual and safe way, voluntarily taking another and unsafe way, which by the negligence of the master is left open to him, he is guilty of contributory negligence. That seems to result from an excursion outside the ease in hand. The evidence at least tends to show that the usual, not the unusual, way was chosen, and is, at the best for appellant, conflicting as to whether it was *147not as safe, in view of all the interferences existing, as any, though some other way would have avoided the particular danger which caused the accident.

By the Gowrt. — The judgment is affirmed.