144 Wis. 106 | Wis. | 1910
Lead Opinion
The grounds for reversal urged in this case are that the court erred (1) in refusing to hold that the de
1. In reference to tbe first error, it is said tbat tbe gearing was safely guarded witbin tbe meaning of sec. 1636;, Stats. (1898), and tbe fact tbat tbe guard bad become displaced and so remained for balf an bour on tbe day of tbe injury, and bad also become displaced for a few minutes tbe day before, was not sufficient to charge tbe defendant with knowledge of any infirmity therein. There is no claim tbat tbe defendant bad any actual knowledge that the guard was off on either occasion. We do not find any evidence in tbe case tending to-show tbat tbe guard was not a safe appliance, if we assume tbat it bad been properly and sufficiently fastened, and we do-not think tbat tbe jury would be warranted, on tbe facts-shown, in finding tbat tbe defendant was chargeable with knowledge of tbe fact tbat tbe guard was not in place on tbe occasions referred to. We do think tbat tbe jury might have-found from tbe evidence tbat tbe gearing was not safely guarded in tbe first instance, because of tbe manner in which-tbe guard was put in place. Tbe guard was an inch board, tbe upper edge of which was nailed to another inch board tbat formed part of tbe table, and tbe upper edge of the guard board came up flush with and really formed part of tbe top of tbe table. Tbe guard board was not fastened at tbe bottom, and there was evidfence from which the jury might have found tbat tbe ends were not fastened, although there was considerable evidence to tbe effect tbat it was nailed at tbe ends to tbe two-by-four boards upon which the top of tbe table rested. Tbe evidence further tended to show tbat employees in tbe performance of their work bad occasion to lean against tbe guard in such a manner as to spring tbe lower portion of it inward, and tbat slabs, cants, and other material passing down tbe table came in contact with tbe upper edge of tbe guard board in
2. It is next urged that the deceased knew half an hour before he was injured that the guard had become detached, and, knowing this fact, continued at his work and thereby assumed the hazard. The obvious answer to this contention is that under the provisions of sec. 1636/;', Stats. (Laws of 1905, ch. 303), an employee does not assume the hazard of an unguarded gearing by continuing to work around the same after he knows of its existence. Klotz v. Power & M. M. Co. 136 Wis. 107, 116 N. W. 770; Lind v. Uniform S. & P. Co. 140 Wis. 183, 187, 120 N. W. 839. But it is argued that sec. 1636// should not be held to apply to a case such as this, where the master had provided a sufficient guard in the first instance which had become temporarily displaced, and from which displacement injury resulted before the master had any knowledge, actual or constructive, of the displacement. We cannot agree to this construction or read any such exception into the statute. The jury found that the defendant was negligent in not safely guarding the gearing in the first instance, as required by sec. 1636/, Stats. (1898), and we have already said that there was evidence to support such finding and also a finding that such negligence was the proximate cause of the injury. Sec. 1636// clearly exculpates the employee from that species of contributory negligence known as assumption of hazard in such a case, although it does not cover other phases of contributory negligence. Lind v. Uniform S. & P. Co., supra, and cases cited.
3. It is further argued that the deceased was guilty of
But it is urged that the deceased knew that the guard was provided for his protection as well as for the protection of •other employees of the defendant; that he knew it had become •displaced half an hour before the injury occurred; that he knew that in the performance of his duties he was required to work in close proximity to this gearing a very considerable part of the time; that he knew this exposed gearing was exceedingly dangerous, and that he had the right to suppose that the master would immediately replace the guard as soon as it had knowledge that such guard was off; that the contrivance was a simple one, consisting of a board three feet long and six inches wide that could be temporarily put back in place by the servant without difficulty, and that the deceased was guilty of •contributory negligence in failing to notify the master when he knew that the guard was off or else in failing to put the same back in place. There would be little doubt that these ■facts would defeat a recovery under the doctrine of Howard v. Beldenville L. Co. 129 Wis. 98, 114, 108 N. W. 48; Yezick v. Chicago B. Co. 138 Wis. 342, 120 N. W. 247, and •other cases, were it not for secs. 1636/ and 1636jj of our stat-ntes. Where reasonably safe machinery has been furnished to the employee, which becomes out of repair during its operation, and the master has no knowledge of that fact and has Tad no reasonable opportunity to acquire such knowledge and
4. The first question in the special verdict was as follows:
“Did the defendant ever securely guard the gearing of the machine at which 'the deceased, Philip La Pointe, was injured before said accident ?”
In reference to this question the court charged the jury, among other things:
“By securely guarding it is meant that the defendant should guard the gearing safely, that the persons who work about the building should be secure against danger or violence while performing their work
Exception was taken to the portion of the charge quoted and error is predicated thereon.
We will first consider whether the charge was erroneous,, and, if it was, then whether it was prejudicial. The language used is not qualified in any way elsewhere in the charge. We think the jury would naturally understand from this charge-that it was the defendant’s legal duty to so guard this gearing
In the Guinard Case the plaintiff was injured by a revolv
In Powalske v. Cream City B. Co., supra, the plaintiff was injured by coming in contact with an unguarded shaft, which is one of the appliances specifically named in sec. 1636/, Stats. (1898). In that case the court said:
“The statute does not require every shaft in a factory to be guarded or fenced, but only such as are so located as to be dangerous to employees in the discharge of their duties. It does not hold the owner of a factory, where machinery of the kind it mentions is used, bound to anticipate every possible danger to his employees that may in any event exist therefrom by reason of its being unguarded. The statute must have a reasonable, sensible construction. It plainly contemplates that persons required to comply with its provisions shall exercise ordinary judgment in determining whether machinery should be guarded, and that, in such exercise, they shall bring to bear*116 upon the subject ordinary prudence and intelligence under the circumstances of each particular case.”
Continuing, the court bolds tbat, unless tbe employer bad reasonable ground to apprehend tbat an accident might happen to the employee while engaged in performing bis work, there was no breach of duty in failing to provide a guard.
There can hardly be' any justification for the claim that,, while the employer must exercise only ordinary care in discovering whether a gearing or a shaft should be fenced or guarded, yet, having discovered that a guard must be put in place, such guard must afford an absolute protection to the employee at all times and under all circumstances when he is-engaged in the line of his employment. If only ordinary care is required in the first place in discovering a defect, ordinary care is all that is necessary in guarding it.
If this rule be wrong, then the court was wrong in holding in Klotz v. Power & M. M. Co. 136 Wis. 107, 116 N. W. 770, that, while sec. 1636;/, Stats. (Laws of 1905, ch. 303), took away the defense of assumption of hazard where sec. 1636/, Stats. (1898), had been violated, still the “employer’s right to the defense of other phases of contributory negligence” was not taken away; and the court was in error again in approving of this decision in Lind v. Uniform S. & P. Co. 140 Wis. 183, 120 N. W. 839.
If it be the duty of the master to insure the employee against danger from an unguarded gearing, and to make it so safe that the employee cannot get hurt therein, then the servant has a perfect right to rely on this legal duty and to assume that it will be performed, and in the nature of things he cannot be guilty of any act of negligence that would defeat a recovery. He might, as against any kind of a guard, manage to injure himself if he set about to do so, but this would not be negligence. The principle involved is very closely analogous to the principles held applicable to the common-law duty of an employer to furnish to an employee a safe place to
The judgment should not be reversed, however, unless it appears that the erroneous instruction has affected the substantial rights of the defendant. Ch. 192, Laws of 1909'
5. The witness Elfstrom testified that the gearing could have been guarded by using a sheet-iron covering instead of hemlock boards; that such a guard could have been fastened on the roller bed; and that so fastened it would not have interfered with the use of the machine. The evidence was objected to and exception taken to the rulings of the court holding it competent. The evidence was not competent and should not have been received. Where the master insists that it is not feasible to guard dangerous machinery at all, it is held admissible to show that a guard was provided after injury resulted from the exposed machinery. Lind v. Uniform S. & P. Co. 140 Wis. 183, 120 N. W. 839, and cases cited. Such evidence is receivable for no other purpose than to show that the machinery might have been guarded. But it is not competent to show that some kind of a guard should have been used which in the judgment of a witness might be more efficient than that provided. So long as the master uses the ordinary appliances commonly used by ordinarily prudent men, and has disobeyed no law of the land, he has fulfilled his duty, unless, perchance, such appliances are obviously dangerous. Guinard v. Knapp-Stout & Co. Co. 95 Wis. 482, 70 N. W. 671; Innes v. Milwaukee, 96 Wis. 170, 70 N. W. 1064; Osborne v. Lehigh Valley C. Co. 97 Wis. 27, 30, 71 N. W. 814; Jensen v. Hudson S. Co. 98 Wis. 73, 73 N. W. 434; Boyce v. Wilbur L. Co. 119 Wis. 642, 97 N. W. 563; Yazdzewski v. Barker, 131 Wis. 494, 111 N. W. 689. No claim was made in this case that the gearing could not be guarded. The appel
Other errors are argued, none of which affect the plaintiff’s cause of action. As the questions are not likely to arise on a •subsequent trial of the cause, we refrain from discussing them.
By the Goiurt. — The judgment of the circuit court is reversed, and the cause is remanded for a new trial.
The following opinion was filed December 13, 1910:
Dissenting Opinion
(dissenting). Sec. 1636/, Stats. (1898), provides :
“The owner or manager of every place where persons are employed to perform labor shall surround every stationary vat, pan or other vessel into which molten metal or hot liquids are poured or kept with proper safeguards for the protection of his employees, and all belting, shafting, gearing, hoists, fly-wheels, elevators and drums therein which are so located as to be dangerous to employees in the discharge of their duty shall be securely guarded or fenced.”
The particular provision of the foregoing statute applicable to the instant case is:
“All . . . gearing ... so located as to be dangerous to •employees in the discharge of their duty shall be securely .guarded or fenced.”
It seems quite plain that if the gearing is in fact such gearing as the statute describes, viz.; one so located as to be dangerous to employees in the discharge of their duty, the duty to guard or fence it is mandatory; and the manner in which it .shall be guarded or fenced is in like case covered by manda
“The statute of this state requires all gearing so located as to be dangerous to employees when engaged in their ordinary duties to be securely guarded so as to be safe to such employees in such employment. If the sprocket wheel was so located as to be dangerous to plaintiff while engaged in his ordinary duties, unless guarded in some proper way, then the statute applies and the absence of the guard was negligence per se."
If this is the law, then the opinion of the majority is not law, and it must be apparent to every one, layman or lawyer, that this latter case conforms to the statute, while the majority opinion in the instant case does not. The majority opinion in the instant case puts forward as an excuse for departing from the statute that otherwise the venerable and valuable defense of contributory negligence might or would be excluded and that otherwise the statute might make the em
“This court has distinctly held that where the law requires some particular thing to be done by a person to guard the personal safety of others, a failure to perform the duty so imposed constitutes actionable negligence at the suit of a person of that class, injured by such failure of duty, without contributory negligence on his part. Smith v. Milwaukee B. & T. Exch. 91 Wis. 360, 64 N. W. 1041.” Klatt v. N. C. Foster L. Co., supra. See, also, Sharon v. Winnebago F. Mfg. Co. 141 Wis. 185, 124 N. W. 299.
Speaking of an ordinance cognate in character to this statute this court said:
“If there was such an ordinance and it was valid, it was error to leave the question to the jury to say whether a violation thereof constituted negligence.” Stafford v. Chippewa Valley E. R. Co. 110 Wis. 331, 358, 85 N. W. 1036, and cases cited.
Many other cases will be found cited in these opinions. So that the doctrine is neither novel nor dangerous, nor does it exclude the defense of contributory negligence'nor make the master an insurer. The majority in the instant case simply frightened themselves without cause. Quoting again from Klatt v. N. C. Foster L. Co., supra:
“True, it is sometimes said that the omission of a statutory duty is not negligence per se, but only evidence of negligence. That rule applies only where the injury caused is not within the scope intended to be guarded against by the statutory requirement, as in cases of injuries to persons, contributed to by failure to fence railway tracks, the primary purpose of which is to prevent injuries to cattle and other domestic animals. Schmidt v. M. & St. P. R. Co. 23 Wis. 186. In Union P. R. Co. v. McDonald, supra [152 U. S. 262], and Hayes v. M. C. R. Co., supra [111 U. S. 228], the distinction is clearly pointed out between cases where omission of a statutory duty is negligence per se¡ and where evidence of negligence only.”
In Van de Bogart v. Marinette & M. P. Co. 132 Wis. 367, 106 N. W. 805, an instruction to tbe jury concerning tbe statute in question and containing tbis sentence was approved:
“Tbe failure to guard or fence a set-screw on a shaft so located as to be dangerous to employees while in tbe discharge of their duty would be negligence.”
This, as I understand it, makes tbe negligence of tbe employer a matter of law, provided tbe shafting is so located, and therefore that decision is in conflict with tbe decision in tbis case. Given a shaft so located as to be within tbe calls of tbe statute, if tbe failure to guard it is negligence 'per se, or if tbe duty to guard it is a duty imposed by law, then it follows that it is no excuse for tbe defendant that other persons also disregard tbis legal duty or commit other acts which also constitute negligence per se.
In Walker v. Simmons Mfg. Co. 131 Wis. 542, 111 N. W. 694, judgment for tbe plaintiff was affirmed notwithstanding tbis instruction given to tbe jury:
“Tbe law requires that the employer shall securely guard or fence shafting which is so located as to be dangerous to employees in tbe discharge of their duties, and if you find that tbe shafting in question, under all tbe facts and circumstances proven, was so located as to be dangerous to tbe plaintiff in the discharge of bis duties in tbe line of bis employment at tbe time of tbe injury to him, you should answer tbis question ‘No.’ ”
Tbe question so peremptorily directed to be answered in tbe negative was tbis: “Was such place so furnished by tbe defendant a reasonably safe place in which to do bis work ?” Here is a direct instruction making it a matter of law that tbe place was unsafe if tbe shaft was so located as to be dangerous to employees in tbe discharge of their duty and unguarded. Tbis is also tbe necessary result of tbe decisions
“Wbat would constitute a reasonable guarding of an elevator entrance under tbe circumstances mas determinable with reference to the mandate of the statute that it must be securely guarded. Nothing short of that would be a reasonable guarding.”
Tbis is also in conflict witb tbe opinion in tbe instant case. Now if we compare wbat was said by tbis court in these de-cisions witb wbat was said by tbe court below in tbe instant •case to tbe jury for wbicb tbe judgment below was reversed, not selecting a detached sentence from tbe instructions below .as is done iñ tbe majority opinion, but giving tbe context, we will find that tbe instruction given by tbe court below was but a paraphrase of tbe foregoing language quoted from tbis court in Klatt v. N. C. Foster L. Co., supra; Van de Bogart v. Patten P. Co., supra; Walker v. Simmons Mfg. Co., supra; and Anderson v. Horlick’s M. M. Co., supra. Tbe instruction in the instant case in the court below was as follows:
“Tbe law requires tbe employer of labor, where tbe laborer is required to work about dangerous gearing wbicb is so located as to be dangerous to tbe workmen, to securely fence or guard tbe same. It was the duty under tbis statute for tbe defendant to securely guard tbe gearing of tbe machine in •question. Tbe evidence of tbe plaintiff, tbe plaintiff claims, tends to prove that tbe defendant was guilty of negligence in not complying witb tbe law in tbis respect. Tbe defendant claims that its evidence tends to prove that tbe gearing of tbe machine in question was securely guarded. By securely guarding it is meant that the defendant should guard the gearing safely, that the persons who work about the gearing should be secure against danger or violence while performing their work. Tbe statute in relation to tbis question reads as follows (Reads statute to tbe jury.)
“It [the statute] requires him [the employer] first to decide whether the gearing is so situated as to be dangerous to employees in the discharge of their duty, and, second, to securely guard or fence it if dangerous. He must use ordinary care and prudence in deciding the first question, and decide it as ordinarily careful and prudent employers under like circumstances, in honest exercise of their judgment, would decide it. If such an employer could reasonably apprehend that injury might result to an employee in the discharge of his ordinary duties from the unguarded gearing, then it is dangerous and must be guarded, and he must also proceed to furnish such a guard, or at least as effective a guard as such ordinarily careful and prudent employers under like circumstances would and do deem it their duty to furnish. This is a secure guard within the meaning of the law. Guinard v. Knapp-Stout & Co. Co. 95 Wis. 482, 70 N. W. 671; Powalske v. Cream City B. Co. 110 Wis. 461, 86 N. W. 153. The only exception to the last proposition is that if the guard so ordinarily furnished be obviously dangerous it will not be deemed sufficient. Yazdzewski v. Barker, 131 Wis. 494, 111 N. W. 689.... So the true rule, subject to the limitation referred to, is that, if the employer furnish such a guard as is in general use among employers of ordinary caution in the same line of business and under the same circumstances, he has discharged the duty imposed upon him, and the guard so furnished is in a legal sense reasonably safe and the dangerous machinery has been securely guarded within the meaning of the statute.”
Observe, first, that the opinion departs from the ancient and long established rule of this court that the standard of care by which the conduct of the person accused of negligence is tested “is such care as the great mass of mankind ordinarily exercise under the same or similar circumstances.” Nass v.
“However rigidly a court may uphold tbe right of a master to follow general usage, it is clear tbat evidence of a custom*128 to disregard a law requiring employers to use an appliance calculated to preserve their servants from some particular danger can never be admissible where the question of the exercise of due care on the employer’s part is raised.” 1 Labatt, Mast. & Serv. § 47, citing Cayzer v. Taylor, 10 Gray, 274, 69 Am. Dec. 317.
It does not, however, require authority to support such a self-evident proposition. Yet the opinion criticised will bear' no other reasonable construction than that an employer commanded by sec. 1636;, Stats. (1898), to cover a gearing in fact located as therein described/is not absolutely required to-do so, but only to decide whether the gearing is so situated and use ordinary care and prudence in so deciding, and decide it as ordinarily careful and prudent employers under like circumstances, in honest exercise of their judgment, would decide it. This means that the employer might urge in justification of his disregard of this statute that he honestly decided not to cover the gearing because he thought it not so-located as to be dangerous, although as a matter of fact it may be so located, and that he did so as ordinarily careful and prudent employers under like circumstances, in honest exercise of' their judgment, would decide it. He and they decide upon what is their duty under the statute. Next, the statute says-that the gearing shall be securely guarded, but the opinion says No, that the employer is only required to furnish “at. least as effective a guard as such ordinarily careful and prudent employers under like circumstances would and do deem it their duty to furnish.” This results in giving to a class-designated in a statute as the subjects of regulation the right to determine the diligence of its own members by comparisons-among themselves, and thus to decide whether or not they will comply with the statute, and whether or not, having arrived at the conclusion that a guard is required, they will conform to the statute and provide a secure guard, or merely one which they and others of their class “would and do deem it their-
“If such an employer could reasonably apprehend that injury might result to an employee in the discharge of his ordinary duties from the unguarded gearing, then it is dangerous and must be guarded.”
But only a few months ago this court said, speaking of the same statute:
“The law is cast in general terms. We cannot interpolate into it the word ‘ordinary,’ and test appellant’s conduct by a different standard than the legislature, in the proper execution of its police power, created. Such limitation upon the duty to guard as might be indicated by the word ‘ordinary’ . . . the legislature manifestly did not intend should exist, from the fact that the word was industriously, by amendment [in 1898], dropped from the law as it formerly existed; the words ‘discharge of their duty’ being substituted for ‘engaged in their ordinary duties.”' [Miller v. Kimberly & Clark Co. 137 Wis. 138, 142, 118 N. W. 536.]
We who are capable of a record like this should view with a good deal of liberality and charity the shortcomings of our brethren of the circuit bench. Speaking of the prejudicial effect 'which the criticised instruction in the instant case must have had, the majority opinion goes on to say:
“The process of reasoning by which the jury would naturally reach the conclusion which it did is simple, direct, and well nigh obvious: The master should have provided a guard which would have prevented the injury. He did not do so. Therefore he did not perform his duty by properly guarding the gear.”
This part of the opinion failed to keep in mind that we had decided that in case the gearing was so located as to be dangerous the failure to cover it was negligence per se (Klatt v. N. C. Foster L. Co. 97 Wis. 641, 73 N. W. 563) ; that there was a ■finding based upon sufficient or undisputed evidence that the
I am authorized to say that Mr. Justice Siebecher and Mr. Justice Kerwin concur in this dissent.