160 Wis. 606 | Wis. | 1915
Lead Opinion
The following opinions were filed February 9, 1915:
Plaintiff’s counsel makes the broad claim that since the statute, sec. 2394 — 1, Stats. 1911, as applied to this case, abolished the defense of assumption of risk and the negligence of fellow-servants, and since by sec. 2394 — 48 it required the master to furnish a safe place of employment, the only defense open to the defendant was that of contributory negligence; that it is an insurer of the safety of the place and appliances furnished and cannot escape liability by showing that they áre safe within the meaning of the statute. To sustain this claim the cases of Koepp v. Nat. E. & S. Co. 151 Wis. 302, 321, 139 N. W. 179; Kosidowski v. Milwaukee, 152 Wis. 223, 139 N. W. 187; and Rosholt v. Worden-Allen Co. 155 Wis. 168, 144 N. W. 650, are cited. The first two cases were decided under sec. 1636 — 81, Stats. 1911, which was repealed by ch. 588, Laws of 1913. 1‡ prohibited an employer in certain kinds of labor from furnishing scaffolding, hoists, stays, ladders, or other mechanical contrivances that were “unsafe, unsuitable or improper.” The statute did not define the words “unsafe, unsuitable or improper,” and the court applied to them their usual meaning and held that if an unsafe appliance of the kind mentioned was furnished and an accident to an employee resulted while engaged in the labor specified in the statute, the employer was liable unless he could show assumption of risk or contributory negligence or both. It mattered not that he might himself be free from negligence. In that sense he was an absolute insurer of the safety of the appliance.
The statute applicable to this case is quite different in its language. It says the employer shall furnish a safe place of
In the present case the jury found that the chain that broke and injured plaintiff was of sufficient strength at the time of the injury to render the operation of moving the pile-driver in the usual and customary manner of moving it as free from danger to the safety of the employees moving it, including plaintiff, as the nature of the work of moving it reasonably permitted. It is urged that this is not a finding in accordance with the statute because it tests the sufficiency of the chain by the strength required to move the pile-driver in the usual and customary manner. It is claimed that it should have been as strong as it could reasonably have been made, so that no matter in what manner the pile-driver was moved it would have held the strain. This raises the question whether the statute was intended to require a place of employment or an appliance to be made as free from danger as the nature of the employment will reasonably permit irrespective of the kind of employment to be carried on within it or the probable use to which the appliance may be put; or whether it means that, having regard to the nature of the employment and the probable use to which an appliance may be put, the place of employment and.'the appliance shall be so constructed and in such condition that they shall be as free from danger as the nature of the employment will reasonably permit. It seems the latter must have been the legislative intent. Throughout both the Workmen’s Compensation and Industrial Commission Acts there is a studied attempt to safeguard the health, life, and limb of-employees to the utmost in so far as the same can be done without placing unnecessary or unreasonable burdens upon the employer. The legislation was a laudable and quite successful attempt to better industrial conditions for both employer and employee. Upon both were placed additional duties of care to the end
Places of employment and appliances are safe within the meaning of the statute when they are so constructed and in such condition that, considering the nature of the employment conducted in them and the manner in which it is customarily carried on, or the manner in which an ordinarily careful and prudent man may reasonably anticipate it might be conducted, and considering the use the appliances are, with the knowledge of the employer, being put to, or the use which an ordinarily careful and prudent person may reasonably anticipate they might be put to, they are as free from danger as such employment and such use will reasonably permit. Montevilla v. Northern F. Co. 153 Wis. 292, 141 N. W. 279; Kendzewski v. Wausau S. F. Co. 156 Wis. 452, 146 N. W. 516. In other words, safety is not an absolute, fixed term, but a relative one, being always measured by the kind of employment and the manner in which it is customarily carried on and by the use appliances are, with the knowledge of the
It is strongly urged that the jury’s answer to it is not supported by the record, since plaintiff’s evidence shows that the skids under the rollers were placed level and no unusual or unreasonable strain was put upon the. chain that broke. There is, however, an abundance of testimony on behalf of the defendant given by co-employees of the plaintiff that the skids were not placed level with the ones on which the rollers were; that plaintiff saw this and yet he signaled to the engineer to put on more and more power; that the latter did so till every part of the appliance groaned and creaked, as the witnesses put it, and the chain broke before the rollers climbed the ends of the skids. Plaintiff testified that it was customary to place the skids, and that they ought to be placed, level with the ones supporting the rollers, but not end to end. Instead they were placed so as to overlap some with those in position but parallel and level with them. To place them level it was often necessary to dig away some soil,
One witness testifies:
“Olson gave orders to put on the strain again after the bridge link was moved. He gave orders to put the strain on — gave orders that way (indicating with hand), and the man kept tending to the nigger and the engineer turned on a little more steam and the ropes began to squeak and everything pulled tight; strained, and he was motioning for more power and the driver moved a little — I don’t know how many inches, but not far until it struck solid and this kept on turning and finally the chain broke. The rollers were up against the end of the new skids. . . . The engine was pulling on the driver with the roller against the skid before the chain broke, probably a minute. . . . The ropes all squeaked and everything creaked from the stretch being pulled out of them. ... I saw what was going on. I saw Olson wave his hand when it would not climb that timber. I saw the man at the winch pull tighter on the rope. I saw the engineer putting on steam. I could see all that, that is what that means (indicating with hands). I could see it, I was within fifteen feet of the driver. ... I noticed afterwards the cable where it was around the pile and it cut into the pile, around the head of the pile. It dug three quarters of an inch, it couldn’t be got out without the aid of a peavey. The most of it was done this time. The rope had been around the pile for moving the driver down, and it never goes in far enough but what a man can take hold and lift it, but this time it was snared up tight. . . . They pulled hard enough to make a hole in the pile. It was three quarters deep. Two half hitches and had to pry it off with a peavey to get the thing off.'”
A broken link was received in evidénce and it is before us. According to plaintiff’s evidence it is the link that broke. Defendant’s evidence denies that it is. In view of the apparent defective condition of the link and the jury’s answer, we must assume that they found that it was not the link that broke.
It is further urged by plaintiff that it was error to instruct -the jury that the burden of showing that the defendant did not furnish a sufficient chain to do the work was upon the plaintiff, and that the burden was upon him to show that such failure to furnish a sufficient chain was the proximate cause of his injury. Both contentions are founded upon the erroneous assumption that in an action under the statute, when it is shown that an accident has occurred, the plaintiff is entitled to recover unless the defendant can establish the defense of contributory negligence. Not so. The burden rests upon the plaintiff to establish that defendant has failed to comply with the statute and that such failure is the proximate cause of his injury. Instead of, as formerly, showing that defendant failed to exercise ordinary care, plaintiff must now.show defendant has failed to meet the statutory requirements as to safety. In both actions it is incumbent upon plaintiff to establish that defendant’s failure was the proximate cause of the injury. No other assignment of error is of sufficient importance to merit treatment.
By the Court. — Judgment affirmed.
Dissenting Opinion
(dissenting). The chain in use was offered in evidence and sent to this court as an exhibit. What was claimed to be the broken link was also sent, although there is some dispute in the evidence about its identity. Whether
There was no room for the jury or for any one else to say that the nature of this work was such that it would not reasonably permit the use of a heavier chain or of one that was not badly worn or one that would have stood the test to which the broken chain was subjected. Neither was there room for reaching a conclusion that the breaking of the chain was not the proximate cause of the plaintiff’s injury. I think no member of the court would disagree with any statement so far made.
The court takes the position that if the chain was in such condition that it would not break if the work was carried on in the customary manner or in the manner in which an ordinarily prudent man might reasonably anticipate that it would be carried on, then it was as safe an appliance as the nature of the employment would reasonably permit within the meaning of the statute. If this be the correct interpretation of the statute, then I concede that there was some evidence to support the verdict and that the judgment should be affirmed.
I cannot and do not agree to any such construction of the statute, because I believe that it is contrary to its plain words and to our former decisions and to the ideas that were finally crystallized and embodied into our statute law. That ch. 50,
If we read these statutes in the light of what was common knowledge when they were passed, there is very little force in the argument that the legislature could not have intended that appliances should be strong enough to stand the test of unusual contingencies because such a requirement would be unreasonable. What the legislature aimed to do was to sweep all employers not in the excepted class under the Compensation Act, and it was not much concerned with the inconvenience those who chose to stay out might suffer.
Eor our old acquaintances “ordinary care,” “reasonably safe place in which to work,” and “reasonable anticipation” there was substituted a plain duty, — the master was obliged
I think that if a man in the course of his employment is injured by an improperly guarded machine, or in any other way, and the physical situation is such that the place of work might be made safe without undue interference with the carrying on of the work, then the master is negligent, and the question of whether he could reasonably anticipate that an injury might happen, or whether he exercised ordinary care in providing a safe place, is immaterial. I think the words “place of employment” refer to the physical situation.
The decision, it seems to ine, practically gets us back to the common-law rule that where the master exercises ordinary care in providing for the safety of the employee he has performed his full duty.
When ch. 485, Laws of 1911, was first before the court for .consideration, it was certainly thought that it materially changed existing law. It was said: “The statute in unequivocal terms requires the employer to furnish employment which shall be as safe for- the employees as the nature of the employment will reasonably permit.” And further: “This language leaves no room for construction, or question as to legislative intent.” Sparrow v. Menasha P. Co. 154 Wis. 459, 465, 143 N. W. 311. If we interuolate into the statute
In the next case involving these statutes the court held that they made “some radical changes in the common law,” and that the “safe place” spoken of undoubtedly referred to the “physical situation.” It was held that the duty was absolute to make the place of employment as safe as the nature of the employment would reasonably permit. Rosholt v. Worden-Allen Co. 155 Wis. 168, 144 N. W. 650. Now the question of reasonable anticipation or ordinary care is not involved in the performance of an absolute duty, and it was said in the Rosholt Gase that the duty to furnish a safe place under the 1911 law was not different from that imposed on railroads by the fencing statute (sec. 1810), as construed in Curry v. C. & N. W. R. Co. 43 Wis. 665, 674, and Ulicke v. C. & N. W. R. Co. 152 Wis. 2-36, 139 N. W. 189, and at least as great as that imposed by the scaffolding statute (sec. 1636—81, Stats., 1911), as construed in the Koepp Case, 151 Wis. 302, 313, 139 N. W. 179. If the case presently before us is correctly decided, then I think the Rosholt Gase was not correctly decided.
In the subsequent case of Langos v. Menasha P. Co. 156 Wis. 418, 424, 145 N. W. 1081, that part of the opinion in the Rosholt Gase which holds that the absolute duty exists to furnish as safe a place as the nature of the employment will reasonably permit is quoted and approved.
The Rosholt Gase is again approved in Besnys v. Herman Zohrlaut L. Co. 157 Wis. 203, 209, 147 N. W. 37, and again in Mayhew v. Wisconsin Z. Co. 158 Wis. 112, 118, 147 N.
I cannot reach tbe conclusion that a duty to furnish as safe a place in which to work as the nature of the employment will reasonably permit is performed when the employer furnishes as safe a place as he can reasonably anticipate will be necessary. One is an absolute duty and the other a qualified one.
I do not read the cases cited in the opinion as being in conflict with what was decided in the Rosholt Case. The Montevilla Oase (153 Wis. 292, 141 N. W. 279) was decided without any reference being made to the 1911 statute, which was first called to the court’s attention when the Sparrow Oase was decided. It simply holds that there is no duty to warn where the master cannot reasonably anticipate that injury may happen. Applying as it does to the physical situation, the law of 1911 imposed no greater duty to warn than existed before. The common law was left intact in reference to the master’s duty in this regard.
The Kendzewski Case (156 Wis. 452, 146 N. W. 516) arose under sec. 1636—81, Stats., which required the runway in question to be safe, suitable, and proper so as to give proper protection to life and limb. It was said, as in the Koepp Case, that the duty was absolute, but that it did not require that the place be made so safe that an employee could not be injured. It was further said that “safe” in the statute involved meant safe, suitable, and proper so far as human foresight, studiously applied, could make the place. The place must be so safe as to render personal injury so remote as to be merely within the realm of possibility. Tested by this rule, I think the master was negligent here. But the opinion continues: “The legislature has gone still further under the Workmen’s Compensation Act; . . . but we are dealing with the particular statute applicable to the situation
I think that the answer to question 1 of the verdict should have been changed from “Yes” to “No,” and that question 2 should have been answered “Yes,” and that judgment should havp been rendered on the verdict as amended for the plaintiff for the amount of damages awarded by the jury. 1
A motion for a rehearing was denied, with $25 costs, on May 4, 1915.