| Wis. | Mar 21, 1893

Lead Opinion

WiNsnow, J.

The plaintiff’s injuries were serious, and the jury have exonerated him from negligence, but these facts alone do not entitle him to recover. The question is whether the evidence shows, or tends to show, any negligence on the part of the defendant. We are of the opinion that this question must be answered in the negative. The only ground upon which such negligence can be claimed is that the defendant furnished the plaintiff an unsafe place to work, and did not warn him of the fact that the cable was in the chute and would be lifted. Had the machinery of the dock been in regular operation handling coal, and had this lifting of the cable from the chute been one of the *424incidents of such operation, regularly or occasionally recurring, the argument would be strong that negligence could be predicated upon the failure to warn a new and inexperienced employee of such fact. Such, however, was not the situation. The docks, structures, and machinery were not in use. They were undergoing repairs and rebuilding made necessary by a recent storm. The situation was substantially the same as if they were in process of erection. Now, in the original erection of buildings or structures the rule that the master must furnish a safe place to work can have manifestly very limited application. In the handling of building materials, the adjusting of machinery, and the many operations that are continually going on in the process of building or rebuilding, dangers constantly must arise against which no foresight can provide or warning be given. A place which is perfectly safe at one moment may become full of danger the next moment. Were the employer held to the duty of providing at all times a safe place for the builder to work, or of warning him of a possible future danger, we apprehend few would undertake to-build or repair any structure. Such a rule of diligence would be too grievous to be borne. The rule is well stated in Armour v. Hahn, 111 U.S. 313" court="SCOTUS" date_filed="1884-04-14" href="https://app.midpage.ai/document/armour-v-hahn-91111?utm_source=webapp" opinion_id="91111">111 U. S. 313, as follows: “ The obligation of a master to provide reasonably safe places and structures for his servants to work upon does not impose on him the duty, as towards them, of keeping a building, which they are employed in erecting, in a safe condition at every moment of their -work, so- far as its safety depends, upon the due performance of that work by them and their fellows.”

In the present case the plaintiff and the engineer who. started up the engine were engaged in a common enterprise, namely, the repairing of the docks and machinery, and putting them in order for the transaction of business. They were co-employees, within the decisions of this court. *425Ewald v. C. & N. W. R. Co. 70 Wis. 420" court="Wis." date_filed="1888-01-10" href="https://app.midpage.ai/document/ewald-v-chicago--northwestern-railway-co-6605935?utm_source=webapp" opinion_id="6605935">70 Wis. 420. The engineer was adjusting or hanging the cable upon the drums; the plaintiff was repairing a coal chute. In the course of the engineer’s work the cable was for a time lying in the chute. ITe started the engine and drew it up, and thus made the plaintiff’s position over the chute dangerous, while a moment before it was entirely safe. The cable was never in the coal chute in the ordinary course of the business, but was always far above the chute. No official or superintending officer of the company knew of the fact that the cable was in the chute or was liable to be there, or ordered it put there. It was out of the usual course of business, and could not reasonably be anticipated. Nor was the plaintiff directed to take the position which he did over the chute. Certainly, the defendant could not be held to be obliged to warn the plaintiff of a danger which no one could reasonably anticipate.

We think it very clear that no negligence can be imputed to the defendant under the circumstances, and that if there was negligence it was that ©f the engineer, his co-employee. The case is very clearly distinguishable from the case of Sherman v. Menominee R. L. Co. 12 Wis. 122, and the cases cited in the opinion in that case. There the defendant was held liable for injuries resulting from the use in its business of defective machinery, which it had negligently permitted to remain in such defective condition. There is no such question here. Nor is there anything in the case of Luebke v. C., M. & St. P. R. Co. 59 Wis. 121, in conflict with the principles here announced. In the latter case a car repairer was sent under a freight car standing on a side track to make repairs to the car. The track was not a regular repair track, but a track used for making up trains, and in the course of the regular business of the company an advancing train struck the car while he was under it, and injured him. The answer admitted, and *426the court held, that ordinary care required that under such circumstances a watchman should have been stationed to warn the plaintiff of approaching trains. Here was a dangerous contingency which was reasonably to be anticipated in the regular course of business, and consequently the company owed the duty to the plaintiff of warning him of the danger. As before remarked, the danger in the present case was one which the defendant could not reasonably anticipate. The distinction is very manifest.

These views necessitate a reversal of the judgment.

Dissenting Opinion

Oassoday, J.

I am forced to dissent from the decision in this case. The effect of it is to relieve the defendant, as employer, from the duty of furnishing to the plaintiff, as its employee, a reasonably safe place in which to work. The law on the subject is too well settled to require further discussion. The only ground for any difference of opinion is in the application of the rule. The plaintiff was ordered by the defendant’s superintendent to repair the chutes. The lower ends of them were five or six feet above the platform. The plaintiff got up into the chute by means of a ladder. One end of the cable, with attachments, appears to have been in the chute at the time, unobserved by the plaintiff, and the other end was fastened to machinery liable at any time to be started by the manipulations of the engineer. The engineer did start the machinery, which took up the slack in the cable, and the appliances thereto attached at the chute, caught the plaintiff and took him up into the air, from whence he fell head first, and was very badly injured. The jury found that the engineer was not negligent, and manifestly he was not, as he was in his accustomed place upon the derrick, inclosed where he could not see the plaintiff and the plaintiff could not see him, and he had no instructions to give any warning. Thus it appears that the plaintiff was directed to work in a place of imminent but *427unforeseen danger, of which he had no knowledge or warning. I think the defendant, as master, was bound to know that the engineer was liable to start the machinery at any time without warning, and thus imperil the safety and life of the plaintiff.

Orton, J., fully coincides in the above opinion of Oasso-DAY, J.

By the Court.— Judgment reversed, and'cause remanded for a new trial.