153 Wis. 533 | Wis. | 1913
The following opinion was filed December 10, 1912:
There is practically no dispute in the evidence as to how plaintiff was injured. The statement of facts shows precisely what happened and how it happened. The legs of a hoist, which was required to support a weight of from 350 to 400 pounds, in addition to a portion of its own weight, rested upon the ends of two one-inch horizontal boards in front of their support — the rear ends being unfastened. It is apparent that the fastening of the tail end of the plank of the hoist would have no tendency whatever to prevent the weight on the legs from tipping up the rear ends of the loose horizontal boards. That the natural and inevitable tendency of the weight on the legs was to lower the ends on which they rested and tip up the other ends is a fact of which every child using a teeter or see-saw is fully aware. That they would so tip up whenever the weight in front of the support overcame the weight to the rear thereof is equally obvious. That a weight of from 350 to 400 pounds, in addition to the weight of about two thirds of the hoist, though applied only a few inches in front of the support, was likely to overcome the weight of that portion of the boards lying back thereof, is also quite apparent. It is inconceivable that a carpenter of twenty-eight years’ experience should not be cognizant of these facts. He knew just how the hoist was placed, how it was fastened, and what work it had to do. He knew also that any downward pressure or weight upon the legs would tend to raise the rear ends of the- boards on which they were placed. In short, he knew everything the master could have told him relative not only to the manner in which the hoist was constructed and placed, but also to the effect of using it
Sec. 1636 — 81, Stats., does not abolish the defense of assumption of risk or contributory negligence. Koepp v. Nat. E. & S. Co. 151 Wis. 302, 139 N. W. 179; Williams v. J. G. Wagner Co. 110 Wis. 456, 86 N. W. 157; Knisley v. Pratt, 148 N. Y. 372, 42 N. E. 986; Caddy v. Interborough R. T. Co. 195 N. Y. 415, 423, 88 N. E. 747; Schmitt v. Rohn, 110 N. Y. Supp. 1086; O’Maley v. South Boston G. L. Co. 158 Mass. 135, 32 N. E. 1119. This question is fully treated in the first case cited, and it is deemed unnecessary to say more here than merely to refer to it.
It follows logically from what has been said that no duty devolved upon the defendant, though found to exist in answer to question 7, to warn plaintiff of the danger. For somewhat analogous cases see Dougherty v. West Superior I. & S. Co. 88 Wis. 343, 60 N. W. 274; Dahlke v. Ill. S. Co. 100 Wis. 431, 76 N. W. 362; Faber v. C. Reiss C. Co. 124 Wis. 554, 102 N. W. 1049; Rahles v. J. Thompson & Sons Mfg. Co. 137 Wis. 506, 118 N. W. 350, 119 N. W. 289; Ladwig v. Jefferson Ice Co. 141 Wis. 191, 124 N. W. 407; Brotzki v. Wis. G. Co. 142 Wis. 380, 125 N. W. 916; Brown v. Conners, 149 Wis. 403, 135 N. W. 857.
That the answers to questions 5, 6, and 9 are not inconsistent is decided and clearly shown in the case of Campshure v. Standard Mfg. Co. 137 Wis. 155, 118 N. W. 633. Assumption of risk and absence of contributory negligence may co-exist. The former relates to the assumption by the plaint
The court should have changed the answer to question T from Tes to No, and, upon the verdict so changed, rendered judgment for defendant.
By the Court. — Order reversed, and cause remanded with directions to change the answer to question 7 from Yes to No, and, upon the verdict so changed, to render judgment for defendant.
The following opinion was filed December 12, 1912:
This is an appeal from an order granting a new trial on the ground that the special verdict was inconsistent. There is no question, I think, but that the findings of the special verdict are inconsistent with one another, but the majority opinion disposes of the case on the merits and orders judgment for the defendant on the theory that the undisputed evidence shows assumption of risk.
I cannot assent to this disposition of the case, but think the order appealed from should be affirmed.- The statement of facts in the majority opinion is correct and need not be here repeated except in one particular, and that is the point upon which the case turns.
The two “boards” mentioned in the majority opinion upon which the legs of the “horse” rested were planks three inches thick and twenty feet long and probably twelve inches wide. They projected eighteen or twenty inches east of the easterly joist, and the legs of the “horse” rested on them eight inches or a foot east of the east joist. (East is toward the high end of the “horse” to which the hoisting tackle was fastened; west, to the low end of the “horse” which was tied down to a joist with a rope.) When this is added it is not quite so obvious that these “boards” would tip up in hoisting a piece of
Mr. Justice KbkwiN, I am authorized to say, concurs in this dissent.
Upon motion of the respondent a rehearing was granted on March 11, 1913, and the cause was again argued on May 3, 1913.
Eor the appellant there was -a brief by Flanders, Bottum, Fawsett & Bottum, and oral argument by C. F. Fawsett.
For the respondent there was a brief by H. M. Sheets, H. J. Piper, and Jared Thompson, and oral argument by Mr„ Piper.
The following opinion was filed May 31, 1913:
The plaintiff at the time of injury was working for the defendant as a carpenter and was assisting in the construction by defendant, as independent contractor, of an addition to the Power & Mining Machinery Company’» plant at the village of Cudahy. Detailed statements of the facts of the case were made by the court, and in the opinion of the dissenting justices, when the case was determined on appeal by this court on December 10, 1912, to which we make reference to avoid unnecessary repetition (ante, p. 533, 138 N. W. 1016)., Upon motion by the respondent a reargument of the case has been had, and upon re-examination of the questions presented we are satisfied that in our former conclusions-the law was not correctly applied to the case and that the order of the circuit court granting a new trial must be affirmed. Upon the former consideration of the case the court was led to a conclusion which disposed of the case upon the merits, upon the ground that under the evidence it appeared, as a matter of law, that the -plaintiff had assumed the risk of the hazard and for this reason he had established no cause of action.
“A person employing or directing another to perform labor of any kind in the erection, repairing, altering or painting of a house, building or structure shall not furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders or other mechanical contrivances, which are unsafe, unsuitable or improper, and which are not so constructed, placed and operated as to give proper protection, to the life and limb of a person so employed or engaged.”
The history of this law has been fully set forth in Koepp v. Nat. E. & S. Co. 151 Wis. 302, 139 N. W. 179. That the hoist in question is one of the appliances specified in the statute cannot be questioned. It was held in the Koepp Case that the legislature intended to make employers absolutely liable as to the safety of employees in the situation embraced in the statute, except when the injured person assumed the risk or was guilty of contributory negligence. The court there adopted the declaration of the court in Gombert v. McKay, 201 N. Y. 27, 94 N. E. 186, as expressive of the legislative purpose, which was in substance that:
“It in terms absolutely forbids those employers to furnish or operate or cause to be furnished or operated any apparatus therein mentioned of the character and quality described by it. It, in its effect, provides that any employer who either personally, or by another, furnishes for the performance of any named labor a forbidden article, shall be responsible therefor.”
In applying this law to the instant case it is of controlling importance to keep in mind that the defendant is forbidden to furnish a hoist which is unsafe, unsuitable, or improper and to so place and operate it as not to afford the employee proper protection to his life and limb. The question whether the hoist was suitable, safe, and proper, and whether it was so placed and operated as to give proper protection to the
It is contended that the trial court erred in submitting to the jury the question whether or not defendant, in the exercise of ordinary care, ought to have warned the plaintiff of the unsafe conditions under which the hoist was being operated, upon the ground that the pleadings in the case presented no such issue. The court submitted this issue to the jury and they found against the defendant on the question, and also that such failure to warn was the proximate cause of the injury. It appears that the plaintiff’s attorneys, after the evidence had all been received, requested that the complaint be amended to conform to the evidence in this respect. The court did not then specifically rule on the matter requested;
By the Court. — The order appealed from is affirmed.