176 Wis. 636 | Wis. | 1922
Lead Opinion
The federal Employers’ Liability Act provides that there may be a recovery “for such injury or death resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.”
The first question of the special verdict was: “Was the slide furnished by the defendant for: conveying ice from the icehouse to the refrigerator car reasonably sufficient for that purpose ?”
The court instructed the jury:
“It was not necessary for the defendant to furnish appliances and equipment for doing this work of the best or safest or most perfect kind. It' fully complied with its duties if the slide that it furnished for conveying the ice from the icehouse to> the car was reasonably sufficient for that purpose. The burden of proof is upon the negative,*639 and you must therefore be convinced by the evidence to a reasonable certainty that it was not reasonably sufficient in order to answer in the negative; otherwise you should answer'it in the affirmative.”
In granting the motion for a new trial the court said:
“An appliance may be suitable and reasonably sufficient as an instrument to accomplish a certain end; but to be ‘sufficient’ within the meaning of the law of negligence it must at the'same time be reasonably safe. The instructions left the jury entirely in the dark on that subject, and it is very likely that they understood the term as commonly used instead of in its broader signification as used in the statute. The question referred to would in fact strongly tend to mislead the jury unless it was made clear by suitable instructions that to be ‘reasonably sufficient’ the appliance must not only be fairly adequate for doing the work, but that it must be reasonably safe for those using it as an instrumentality.”
And because the jury were-not so instructed the court set aside the verdict and granted a new trial. The defendant contends that the court erred in so doing. The rule of law is that the employer is under duty to exercise ordinary care to supply machinery and appliances reasonably safe and suitable for the use of the employee, but is not required to furnish the latest, best, and safest appliances, or to discard standard appliances upon the discovery of later improvements, provided those in use are reasonably safe. Chicago & N. W. R. Co. v. Bower, 241 U. S. 470, at p. 473 (36 Sup. Ct. 624). See, also, Sea Board Air Line Ry. v. Horton, 233 U. S. 492, at p. 501 (34 Sup. Ct. 635). We do not determine whether the court erred in setting aside the verdict on the ground stated. The order must be reversed-on other grounds.
The sole question litigated upon the trial was the sufficiency of the appliance. The allegations of the complaint were
“that said trap platform [ice slide] was too narrow, defective and warped at one corner thereof where it lay on the roof of the car, thus producing an uneven, defective,*640 and too narrow platform upon which to slide ice cakes on to the foot-board of the car.”
“That said injury which resulted in death was caused wholly by negligence and carelessness of the defendant and its officers, agents, and servants in not providing a suitable and safe place to work and in not applying suitable and safe tools, appliances, and equipment with which to do said work, and by negligently failing and neglecting to use pinch-bars in order to set its refrigerator car with its open pockets nearer in direct line with its trap platform, thereby avoiding the necessity of sliding ice calces a considerable distance on the running-board to the open pockets at the end of the car.”
. The plaintiff contends that under the law of Wisconsin it is the duty of the employer to furnish his employees a reasonably safe place in which to work and to supply him with reasonably safe appliances. In Sea Board Air Line Ry. v. Horton, 233 U. S. 492, 34 Sup. Ct. 635, speaking of the instructions of the trial court in that case, the court said:
“In these instructions the trial judge evidently adopted the same measure of responsibility respecting the character and safe condition of the place of work, and the appliances for the doing of the work, that is prescribed by the local statute. But it is settled that since Congress, by the act of 1908, took possession of the field of the employer’s liability to employees in interstate transportation by rail, all state laws upon the subject are superseded.” Page 501.
In Sea Board Air Line Ry. v. Horton, supra, it is stated that Congress, in enacting the federal Employers’ Liability Act, intended to and did base the action upon negligence only, and excluded responsibility of the carrier to its employees for defects and insufficiencies not attributable to negligence.
It is the contention of the defendant that the insufficiency complained of was not the proximate cause of the injuries sustained by the deceased and for that reason the plaintiff cannot recover. This proposition is met by the plaintiff with
“Under this statute [sec. 1810] if the want of a fence contributes in any manner to cause the injury the defendant is liable. The ordinary rules relative to proximate cause are not applicable,” citing Atkinson v. C. & N. W. R. Co. 119 Wis. 176, 96 N. W. 529.
In Atkinson v. C. & N. W. R. Co., supra, a gate had been left open by third parties with the knowledge of the section foreman. He did not close the gate nor did he return the following day. The plaintiff’s horse walked through the open gate upon the right of way and was killed. The court says:
“Neither does the statute limit the company’s liability to cases where an ordinarily prudent person might have anticipated that animals would probably enter upon the right of way, but imposes absolute liability for any which do' 'enter by reason either of failure to fence or of negligent failure to maintain fence, subject only to defense of contributory negligence in the latter case. The lawmakers have legislatively assumed the probability that animals will enter on a railroad which is fenced either- inadequately or not at all, and dispensed with the necessity of a finding that an ordinarily prudent man would anticipate such event. The railway company is subjected to the duty of fencing not alone for the benefit of the adjoining owner, but of the public at large.”
The federal Employers’ Liability Act does not give a new cause of action which did not exist at common law, but modified the common-law rule with respect to the defenses of contributory negligence, assumption of risk, and negligence of fellow-servant. Garrett v. L. & N. R. Co. 197 Fed. 715; Burnett v. A. C. L. R. Co. 163 N. C. 186, 79 S. E. 414.
Under the federal Safety Appliance Act it has been held that an employee, in order to recover where he has been injured while using equipment not complying with the terms of the statute, must show that the improper equipment or the absence of proper equipment was the proximate cause of his injury, and that the burden of proof is upon him to show that fact. St. Louis, I. M. & S. R. Co. v. McWhirter, 229 U. S. 265, 33 Sup. Ct. 858. See, also, Voelker v. C., M. & St. P. R. Co. 116 Fed. 867; Erie R. Co. v. Russell, 183 Fed. 722; Briggs v. C. & N. W. R. Co. 125 Fed. 745; Thornton, Federal Liability of Railroads (3d ed.) § 307; Clark v. Erie R. Co. 230 Fed. 478; Virginian R. Co. v. Linkous, 230 Fed. 88; Spokane & I. E. R. Co. v. Campbell, 241 U. S. 497, 509, 36 Sup. Ct. 683; Spokane & I. E. R. Co. v. Campbell, 217 Fed. 518; Tremelling v. Southern Pac. Co. 51 Utah, 189, 170 Pac. 80; Baltimore & O. R. Co. v. Wilson, 242 U. S. 295, 37 Sup. Ct. 123; Bjornsen v. N. P. R. Co. 84 Wash. 220, 146 Pac. 575.
In this case the cake of ice had slipped from the ice slide to the top of the car, where it had remained at rest. Thereafter the deceased proceeded to drag it diagonally along the
It can be argued that if the guide had been in the slide and the calce of ice had not fallen to the roof of the car the deceased might not have been injured and therefore a jury question is presented. Such an argument not only throws the whole question into the field of doubt and speculation, but ignores the established fact that at the time of the injury the negligence complained of had ceased to operate. The fall of the ice to the roof of the car had no consequences which contributed to the fall of the deceased. If the fall had thrown the deceased to the ground, or in endeavoring to prevent the fall ofi the ice or while trying to stop its fall the deceased had sustained injuries, there would have been a causal connection between the claimed negligence of the defendant and the injuries sustained. But where the cake of ice had come to rest and it had thereafter, been moved to another place six or eight feet distant where the accident happened, how can it be said there is any connection between the negligence qf the defendant and the injury sustained? Even if it be argued that the ice was on the wrong side of the running-board and that the deceased was trying to move it over the running-board, there is not the slightest evidence to show that the' accident was due to that fact. The ice might have broken, the tongs might have slipped, or the
There being no causal connection between the negligence complained of and the injury sustained, the defendant’s motion for judgment dismissing the complaint should have been granted.
By the Court. — The order appealed from is reversed, and the cause remanded with directions to enter judgment dismissing the 'complaint upon the merits.
Dissenting Opinion
(dissenting). I think the motion for a new trial was properly granted. The charge of the court was subject to the criticism expressed by the trial judge, in my opinion. It seems reasonably clear to me that the plaintiff was entitled to have the question of the sufficiency of the appliance, referred to as the slide, submitted to the jury under, proper instructions. The work of transporting the ice from the icehouse to the bunker was a simple operation unattended with any great hazard when everything went according to plan. The ice was let down from the platform
While I concede that there must be a causal relation between the defective slide and the accident, it seems to me that relation is plain enough if the accident resulted from an effort to rescue the cake of ice from its malposition on the top of the car. I cannot see that the fact that it came to a state of rest in any way interrupts that relation. The effort to place the cake of ice on the running-board was made necessary by the fact that it was on the inclined portion of the roof of the car, a position which it had assumed by reason of the defective slide, if the slide was defective.
For these reasons, briefly stated, I think the order of the circuit court granting a 'new trial should be affirmed.
