212 Wis. 52 | Wis. | 1933
The appellant claims that as matter of law (1) the defendant violated the safe-place statute and (2) the plaintiff was free from contributory negligence; and that the answers of the verdict bearing upon these issues should have been changed and judgment entered for plaintiff upon the amended verdict. He also claims that if he is not thus entitled to judgment in his favor he is entitled to a new trial because (3) the question submitted to the jury to cover the issue of the defendant’s negligence did not properly submit that issue under the safe-place statute. We will consider these claims in the reverse order of their enumeration above.
It has been pointed out in several decisions of this court, beginning with Rosholt v. Worden-Allen Co. 155 Wis. 168, 144 N. W. 650, that the duty imposed by the safe-place statute changes the common-law measure of duty to furnish a reasonably safe place and imposes the higher duty of furnishing a place as safe as the nature of the employment will reasonably permit. The question submitted to the jury inquired whether the defendant had performed its common-law duty. It did not meet the issue of statutory duty. To cover the issue of performance of statutory duty by the defendant, the concluding phrase of the question above italicized should have been, in substance, in the language of the statute, “as free from danger as the nature and place of employment would reasonably permit,” or should have used the word “safe” instead of the words “reasonably safe,” and instructions should have been given defining the word “safe” as it is defined in the statute. Neither the language of the question itself, nor this language in view of the instructions given in connection with it, correctly expresses the duty of the defendant under the statute. The charge in spots does say that the statute requires that the place of employment
“Places of employment and appliances are safe within the meaning of this statute when they are so- constructed and in such condition that considering the nature of the employment conducted therein and the manner in which it is customarily carried on, or the manner in which an ordinarily careful and prudent man might reasonably anticipate it might be conducted, making it as free from danger as such employment and such use will reasonably permit. The safety required by this statute is not absolute safety, but the term is a relative one. The statute requires such freedom from danger to the life or safety of workmen or frequenters as the nature of the work would reasonably permit, in view of the manner in which the work is customarily carried on and in view óf what might reasonably be anticipated as the manner in which it will be carried on.”
The statements above italicized all incorporate the common-law ideas of reasonable anticipation, ordinarily careful and prudent men, compliance with customary methods, and reasonable care. Compliance with these concepts does not satisfy the statute. The statute imposes an absolute duty to make the place as safe as the nature and place of the employment will reasonably permit. Performance of the common-law duty to make it reasonably safe does not suffice.
The portions of the charge above referred to were apparently in part taken and in part fabricated from an opinion of this court in Olson v. Whitney Bros. Co. 160 Wis. 606, 618, 150 N. W. 959, written by Mr. Justice Vinje,
There was thus no determination of the issue of performance of statutory duty by the defendant. In this situation there should be a new trial of the case if the plaintiff fails to sustain his contentions under (1) and (2) above stated, unless this question must be held to have been determined by the trial court in support of the judgment under sec. 270.28, Stats., in absence of request by the plaintiff for submission
It has been suggested that the error in the form of the question is not prejudicial to the plaintiff, because the question as submitted is more favorable to the plaintiff than the proper form of question would have been. This seems to us not so. The statute is said in the Rosholt Case, supra, to impose a higher degree of care as to safety than the common-law rule and that the higher duty thus imposed is abso
(2) We are of opinion that the finding of the jury that the plaintiff was guilty of contributory negligence must be upheld. Under the plaintiff’s testimony he was standing on the pile of crushed stone near the loose boards attending to his duty of watching the dials and registering the weights of sand and stone as they were dumped together in the trucks. This position placed him directly in front and afforded him a clear view of the dials. However, he could have stood upon the ground at the side of the pile of crushed .stone and watched the dials from that position. The position he took was perhaps more convenient for him. It brought him closer to the dials and was more directly in •front of them. But nevertheless the Jury may have thought that due care .on his part required that he remain upon the ground in performing his work, or at least that he should have noticed the instability of the plank and kept farther away from it. If the jury took the testimony of the workman who was controlling the flow of material from the hopper, to the effect that plaintiff stepped upon the top of
(1) It is stated above that as the loose plank manifestly might have been fastened and that the place of work would have manifestly been safer had it been fastened, the defendant did not comply with the statute unless the circumstances were such that fastening the plank would have so interfered with the work being carried on that the nature of the work would not reasonably permit of their fastening. As stated in the Rosholt Case, supra; page 174: “There may be places which cannot be made safe without seriously interfering with the carrying on of the work. As to such places the master is required to make them only as free from danger as the nature of the employment will reasonably permit. Where the nature of the employment is such that it will reasonably permit a place to be made safe then it must be made so, regardless of the character of the employment,” unless because of statutory exemptions not here involved. So the point now under consideration is whether the evidence contains anything to warrant the jury in finding that the nature of the work being carried on was such as not reasonably to permit the fastening of the plank. It appears that the temporary plank was only used when the pile of stone got so high that it overflowed into the pit beneath the hopper. When this occurred the plank was put in place, the bottom of it an inch or so below the top of the permanent planking with nothing but the permanent planking at its bottom and the ladder at its middle to prevent it from falling outward. It must be borne in mind that neither end of the plank had anything at all to rest against except the stone beneath and an inch or so of plank at the top' of the permanent planking. Manifestly the plank was likely to give way upon slight disturbance at parts away from the ladder. If there was only occasional need for the temporary plank, and the need lasted
It is urged by respondent in effect that the plaintiff was not engaged in his work or at his place of work at the time he was injured but had stepped aside from his work and stepped on the loose plank from idle curiosity. If this be so he was a “frequenter.” The place where he stood was a place of employment. The ladder was placed for use in connection with the work, and one could not use the ladder without going on the stone pile and the plaintiff was standing where one might go to reach the ladder. From the photograph in evidence as well as from the testimony we infer that the workman operating the levers controlling thé flow of material necessarily stood on the stone pile to operate them. If this workman while at work had been injured by the giving way of the plank, there would be no doubt of his right of recovery in case his place of work were found not safe, in absence of contributory negligence, unless recovery
The appellant claims that if the defendant is not to be held as matter of law to have violated the safe-place statute, it must at least be so held that its negligence was greater than that of the plaintiff and that the plaintiff is entitled to such a holding under the comparative negligence statute,' which provides that'where both parties are negligent the one whose negligence is less shall recover against the other. Sec.-331.045, Stats. We have held that where both parties are negligent the question of their proportionate negligence is ordinarily for the jury. So as to the question whose negligence is the greater. We perceive nothing to except this case from the rule.
It is urged in behalf of respondent that inasmuch as the jury found the plaintiff’s negligence was one hundred per cent., this necessarily excludes the idea that the defendant was negligent to any degree and requires affirmance of the judgment. This would of course be true had the question of defendant’s negligence been properly submitted to the jury and the jury had found the defendant not negligent. The finding of the jury that the plaintiff was one hundred per cent, negligent is manifestly based on their finding that the defendant was not negligent at all. The latter finding having fallen because of the improper submission, the .finding that plaintiff was one hundred per cent, negligent falls with it.
By the Court. — The judgment of the circuit court is reversed, and the cause remanded with directions for a new trial in accordance with the opinion.