154 Wis. 459 | Wis. | 1913
Lead Opinion
This action was brought by the plaintiff, an employee of defendant, to recover damages for injuries sustained by him while engaged in unloading logs from a railroad car. The court below directed a verdict for defendant and rendered judgment in its favor dismissing the complaint with costs. The plaintifl assigns error in directing a verdict.
Among other claims of negligence the plaintiff avers in his complaint that the defendant failed to furnish a safe place and safe appliances, in consequence of which he was injured. The injury .occurred March 25, 1912.
The defendant purchased the logs in question in carload lots from a corporation, namely, the Mellen Lumber Company, under a contract which provided that the Mellen Lumber Company “agrees to sell and deliver to the Menasha Paper Company (in 500 to 750 thousand feet, log scale) merchantable hemlock saw logs, cut into lengths from 10 to 16 feet f. o. h. Soo line, at' points between Glidden and Ashland, Wisconsin, and Mellen and Hurley, securely loaded on cars, properly staked, according to regulations of the railroad company.”
The evidence produced upon the thial tends to prove that the logs were bought from the Mellen Lumber Company, under the conthact aRove referred to, loaded on cars. they were delivered at the defendant’s plant on cars, and the plaintiff was directed Ry defendant to unload them and was engaged in unloading in the manner ordered wRen injured. the cars were flat cars, and the logs were Reid on Ry means of stakes on each side of the car about eight feet high. there were two tiers of logs, the first extending aRout three feet above the platform of the ear, and wires fastened to the stakes extending across the logs, and another tier.aRove this fastened with wires in the same manner. 'the-logs were Reing unloaded from the car on a rollway aRout as RigR as the platform of the ear. the operation of unloading was carried on Ry first cutting the wires attacRed to the stakes, tken cutting the stakes nearly off, the middle one first, then the end ones on the side of the car wRere the logs were to roll off. Skids were extended from the car to the rollway to carry the logs over. there was a three-foot space Retween the car and the rollway. -After the.stakes were cut nearly or part way off, the logs were pressed down or started witfl a cant Rook so they Rroke the stakes down and rolled off. Generally fifteen logs roll off at once wRen the stakes give way. Plaintiff was working under the immediate order of the defendant’s fore
The important question raised by respondent’s contention, therefore, is the construction of parts of ch. 485, Laws of 1911, namely:
“The term 'safe’ and 'safety’ as applied to an employment or a place of employment shall mean such freedom from danger to the life, health or safety of employees or frequenters as the nature of the employment will reasonably permit.” Sub. 11, sec. 2394; — 41, Stats. 1911.
“Every employer shall furnish employment which shall he safe for the employees therein and shall furnish a place of employment which shall he safe for employees therein and for frequenters thereof and shall furnish and use safety devices and safeguards, and shall adopt and use methods and processes reasonably adequate to render such employment and place of employment safe, and shall do every other thing reasonably necessary to protect the life, health, safety and welfare of such employees and frequenters.” , Sec. '2394 — 48, Stats. 1911.
“Uo employer shall require, permit or suffer any employee to go or he in any employment or place of employment which is not safe, and no such employer shall fail to furnish, provide and use safety devices and safeguards, or fail to adopt and use methods and processes reasonably adequate to render such employment and place of employment safe, and no such employer shall fail or neglect to do every other thing reasonably necessary to protect the life, health, safety or welfare of such employees and frequenters; and no such employer or other person shall hereafter construct' or occupy or maintain any place of employment that is not safe.” Sub. 1, sec. 2394— 49, Stats. 1911.
Before this statute was passed, this court held that it was the duty of the master to furnish the servant with a reasonably safe place in which to work, and that that duty is absolute. Howard v. Beldenville L. Co. 129 Wis. 98, 108 N. W. 48. The statute under consideration seems to emphasize that duty, and specifically provides that every employer shall fur
The foreman of defendant was present directing the performance of the work and was familiar with the situation and dangers attending it's performance, and the evidence is ample to entitle the jury to find that the employment was not as free from danger as the nature of the employment would reasonably permit, and that' there was in common use, known to the defendant, or which in the exercise of ordinary care should have been known to him, a safe method of doing the work. It is unnecessary to consider here the authorities to the effect that, where an appliance or place to work is constructed by a third party and furnished to the master and free from patent defects, the master is not responsible for latent defects, nor the class of cases holding that the master may use the appliances in common use although they may not be the most safe appliances. Such cases have no application under the statute we are now considering. Ballou v. C., M. S. St. P. R. Co. 54 Wis. 257, 11 N. W. 559.
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 also forbids the employer to permit the employees to work in an unsafe place. This language leaves no room for construction, or question as to legislative intent. It is therefore the duty of the court to give it effect, and not defeat it by judicial construction contrary to its clear import. Koepp v. Nat. E & S. Co. 151 Wis. 302, 139 N. W. 179.
It follows that the case should have been submitted to the jury, and that the court erred in directing a verdict.
By the Court.- — The judgment is reversed, and the cause remanded for a new trial.
Dissenting Opinion
The following opinion was filed October 13, 1913:
(dissenting). I concur in the view of the trial court that “there is nothing in the evidence to show that the defendant was negligent in failing to furnish a proper place to work or a proper car or stake” and that “the injury was due to an accident that could not by reasonable care and diligence have been foreseen.” The defendant received from a common carrier carloads of logs, -loaded in a usual and customary manner, and proceeded to unload them in such manner.’ There was nothing to indicate anything unsafe or un
I am also unable to construe the statute in question as requiring a master to use the latest and most effective safety appliances in all cases, which, as I understand it, is practically the construction put upon it by the court. The statute requires only such freedom from danger as the nature of the employment will reasonably permit. Sub. 11, sec. 2394 — 41, Stats. 1911. To construe this to require a consignee of logs transported by a common carrier to bargain that they must be loaded .upon cars equipped with the latest safety appliances, in face of the evidence that railroads never equip their cars with such appliances, and that only a few of the heavier shippers of logs do so, and in face of the evidence that these logs were loaded in a customary and usual manner, and in a manner, I dare say, that over ninety per cent, of like forest products of the state have been loaded, seems to me to eliminate the word reasonably from the statute. Thus, if a man in Wisconsin receives a consignment of heavy articles which are loaded in New York in a box car, and an employee is injured in the process of unloading, and it could be shown that the unloading could have been done with perfect safety had a flat car been used instead of a box car, and that a flat car might have been used for the purpose, I do not think the consignee would be negligent under the statute because he did not in the first instance direct his consignor to load the freight on a flat car, and it seems to me that the principle which rules the one case should logically r-ule the other. That the word reasonably was used advisedly by the legislature cannot for a moment' be’ doubted, for it took the precaution to define the terms used by it in the act and incorporated the word in such definition. It should not be eliminated by judicial construction.