145 Wis. 537 | Wis. | 1911
Lead Opinion
Did the trial court err in awarding judgment to tbe defendant? That is tbe main question though some minor propositions are' involved. To properly consider tbe major matter tbe purpose of sec. 1636/, Stats. (1898), as settled by judicial construction, must be appreciated. There is little room for want of such appreciation in view of tbe numerous instances in recent years where tbe court has dealt with tbe matter. In tbe aggregate almost every conceivable phase of tbe subject has been judicially treated and some of them over and over again, yet tbe record here shows there is some misunderstanding.
Tbe vital words of tbe statute are, “all belting, shafting, gearing, . . . which are so located as to be dangerous to employees in tbe discharge of their duty shall be securely guarded or fenced.” If the statute does not create a higher duty than that at common law it prescribes a statutory requisite of ordinary care on tbe part of tbe master and by necessary implication prescribes conditions which will give rise tó a prima facie inference of negligence as matter of fact. It does not create a rule of absolute liability.
It seems tbe court at first was inclined to bold that a violation of tbe statute establishes negligence creating liability defendable against only by contributory negligence in
“Absence of the guard was negligence per se. ... 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.” '“Where a statute requires an act to be done or abstained from by one person for the benefit of another, then an action lies in the latter’s favor against the former for neglect in such act •or abstinence, even though the statute gives no special remedy. The imposition of a penalty by the statute does not take the place of the remedy by suit for negligence, unless the penalty ■be given to the party injured in satisfaction for the injury.”
That was but a redeclaration of what was said in earlier decisions. McCall v. Chamberlain, 13 Wis. 637; Dunnigan v. C. & N. W. R. Co. 18 Wis. 28; Athinson v. Goodrich T. Co. 60 Wis. 141, 18 N. W. 764; Toutloff v. Green Bay, 91 Wis. 490, 65 N. W. 168.
It may be that all who concurred in Klatt v. N. C. Foster L. Co., supra, did not intend to hold that mere failure to comply with the statute was sufficient to create an inference of culpable negligence as matter of law, instead of an inference -of fact in that regard rebuttable by showing that the failure did not involve any want of ordinary care in fact, as use of the term “negligence per se" would indicate, or intend to hold that the purpose of the statute or its necessary effect is to preclude defeating an otherwise meritorious claim on the ground of assumption of the risk, as use of the term “actionable negligence at the suit of a person of that class, injured 'by such failure of duty without contributory negligence on his part,” might well, as an original proposition, be said to indicate. But any obscurity in that respect was removed by -subsequent decisions.
The logic most favorable to employees was carried forward into Burns v. C., M. & St. P. R. Co. 104 Wis. 646, 80 N.
It should be noted, in passing, for accuracy of history, that neither in Helmke v. Thilmany, supra, nor any case cited therein was assumption of the risk necessarily mentioned or involved. The sole subject of controversy was contributory negligence, strictly so called. Eor myself, though I concurred in the decision, as I now read the case it seems contributory negligence was mistaken for assumption of the risk. I may well further observe that the present Chief Justice and Justice Dodge dissented upon the ground, as would appear by language used, that the turning question was assumption of risk though it would seem to the writer contributory negligence was really in mind. The distinction between the two-phases of conduct is so shadowy, it is not to be wondered at that one is sometimes spoken of when circumstances more-clearly characterizing the other are -in mind.
However, Helmke v. Thilmany, supra, was followed in Kreider v. Wis. River P. &. P. Co. 110 Wis. 645, 86 N. W. 662; Upthegrove v. Jones & Adams C. Co. 118 Wis. 673, 96 N. W. 385; Walker v. Simmons Mfg. Co. 131 Wis. 542, 111 N. W. 694, firmly establishing as a rule of construction of sec. 1636/ the doctrine announced as stated, though it seems to the writer, looking backward, that in these cases the dis
The foregoing leads up to the other feature of sec. 1636/ which more particularly concerns this case, viz., whether its purpose was to make duty to guard, when otherwise the situation would be dangerous to employees in the discharge of their duties, absolute, rendering failure to comply, under all circumstances, culpable negligence as matter of law, as is perhaps inferable from Klatt v. N. C. Foster L. Co. 97 Wis. 641, 73 N. W. 563, instead of inferable as matter of fact only and so rebuttable by proof of guarding or fencing in the ordinary way, that not being obviously a dangerous way, and leaving to the employer some reasonable measure.of discretion as to whether the situation in any case is within the statute and if so as to the manner and means of complying therewith.
- On the subject last referred to the second alternative suggested was, seemingly, adopted as the test of actionable negr ligence in Guinard v. Knapp-Stout & Co. Co. 95 Wis. 482, 70 N. W. 671. The statute must have been there in mind because the situation dealt with was clearly within it, though it was not mentioned. It was held that the test of prima facie liability on the ground of negligence fixed by law was whether all safeguards were provided which the great mass of mankind ordinarily furnish under the same or similar circumstances; that the employer may not be required to'be wise beyond that standard, and, in effect, that any other standard would be impracticable and unreasonable and might render the success of any legitimate enterprise impossible. That was in terms or effect repeated in many subsequent cases
The latter expression was grounded on Powalske v. Cream City B. Co. 110 Wis. 461, 86 N. W. 153, approved in Hamann v. Milwaukee B. Co. 136 Wis. 39, 116 N. W. 854; Miller v. Kimberly & C. Co. 137 Wis. 138, 118 N. W. 536. The idea therein conveyed is that whether a situation needs guarding or fencing for security as to dangers to employees must, necessarily, be a matter of judgment, as well as the extent and manner of guarding or fencing; and, as the law leaves that to the employer, it cannot be expected of him that he must exercise more care and judgment in respect to when
Even where by written law it was first provided that a railroad should fence its right of way or in default thereof be liable for damages to any person injured, it was held that the defense of contributory negligence was not abrogated and that the requirement was the exercise of a degree of diligence no greater than that of a town in respect to a highway. Curry v. C. & N. W. R. Co. 43 Wis. 665. It may well be said in passing that the element of reasonable anticipation is held to be essential to actionable negligence in highway cases the same as others dependable upon breach of duty to exercise ordinary care. Fehrman v. Pine River, 118 Wis. 150, 95 N. W. 105. In view of the doctrine of the Gurry Case the railroad statute was amended so as to substantially, in express terms, abrogate the defense of contributory negligence in actions for damages for failure to fence a railway right of way; Quackenbush v. Wis. & M. R. Co. 62 Wis. 411, 22 N. W. 519, it being appreciated that unmistakable language was necessary to effect that result.
In Dugan v. C., St. P., M. & O. R. Co. 85 Wis. 609, 55 N. W. 894, if was held, in a similar situation as above, that
■ The general doctrine requiring the master absolutely to furnish his employee a reasonably safe place to work, has not been carried to the extent of making that duty stand the test of what a jury of twelve men may conceive to be required from their own viewpoint of reasonable safety, but the test of what such a jury may conclude is consistent with ordinary care which is said to be no greater than what is customarily done in the same or in similar situations. Boyce v. Wilbur L. Co. 119 Wis. 642, 97 N. W. 563.
The safe-place rule of the common law is as absolute as the statute in question and statutes in general creating duties respecting the personal safety of individuals, and yet, it will be seen by investigation that negligence is the foundation principle governing all, both from the standpoint of the employer and that of the employee, and that the general rules of what constitutes negligence are supposed to be embodied in the written law in the absence of unmistakable language in such statutes to the contrary.
Much more might be said on the subject above discussed but this is not necessarily the occasion for it. Hardly any need of it is liable to be imperative in any situation in view of the full discussion and establishment of definite rules in respect to the matter drawn as supposed from the letter and logic of many decisions, in West v. Bayfield M. Co. 144 Wis. 106, 128 N. W. 992. True, there was room for fair differ
Facing what has been said it is not difficult to discover tbe intent in sec. 1636/; which particularly concerns this case. It was doubtless seen by tbe legislature that neither tbe defense of assumption of tbe risk nor that of contributory negligence was disturbed by sec. 1636;] nor was tbe rule of absolute liability — liability regardless of fault by tbe ordinary standard of human foresight — substituted for tbe ordinary standard of care; that efficient negligence on one side was still tbe ground of liability and freedom from such negligence, in tbe broad sense, tbe condition of enforcing such liability. So with a view of removing any possible uncertainty as to tbe precise test of duty and removing at tbe same time to some extent common-law conditions of enforcing it, tbe new section Was added to tbe written law as sec. 1636;’;’ providing thus:
“In any action brought by an employee or bis legal representative to recover for personal injuries, if it appear that tbe injury was caused by tbe negligent omission of bis employer to*550 guard or protect bis machinery or appliances, or the premises or place where said employee was employed, in the manner required in the foregoing section, the fact that such employee continued in said employment with knowledge of such omission, shall not operate as a defense.” Laws of 1905, ch. 303.
Note the significant words in the new section “negligent omission of his employer to guard,” etc. Obviously it was not intended to recognize two classes under sec. 1636/, one guilty of failure to guard, regardless of negligence in the matter, and one negligently failing to guard. Any failure under see. 1636/ was evidently in contemplation as a “negligent omission to guard,” that term being used so that the written law would in its letter conform to the construction given by this court to such section.
If the desire of the lawmakers had been to increase the duty of employers to the point inferable, in one view from Klatt v. N. C. Foster L. Co., supra, they might easily have done that. If the thought was that the existing rule of the statute did not contemplate the ordinary standard of human duty to be the test of liability, certainly the language used would have been that of the section to which it was supplementary, viz.: “if it shall appear that the injury was caused by the omission of his. employer to guard,” etc., instead of by “the negligent omission to guard,” recognizing negligence, by necessary inference, to be the dominating feature of the existing law. Again, if it had been thought to wholly abolish the defense involving conduct of the injured person the legislature might easily have used language expressing that purpose instead of “the fact that such employee continued in such employment with knowledge of such omission will not operate as a defense” — that is, the one fact commonly held to-show assumption of the risk as matter of law and so establish a defense, shall not so operate. To that extent the court has held the defense of contributory negligence abolished, but 'the law is otherwise unchanged by the new section. Klotz-
In all of the cases cited the idea that negligent omission of duty is the fault dealt with by the statute is recognized. In Klotz v. Power & M. M. Co., the element of reasonable anticipation, so vital to actionable negligence ordinarily, was clearly recognized as essential to characterize actionable fault under the statute. In the next case negligent omission of ' duty was treated as the dominating essential. In the next the question of whether under all the circumstances, guarding was reasonably necessary from the standpoint of what is ordinarily done in such cases was suggested as vital. That feature is not readily seen in the last case without referring to the instructions, no part of which are preserved in the reports, though the purport thereof one can reasonably infer from the opinion.
Looking at the record here in the light of the foregoing, whether error was committed in awarding defendant judgment instead of the plaintiff and if the latter, whether the case should be so disposed of as to render a new trial unnecessary does not seem to be fraught with much difficulty.
The jury found that the gearing was so located as to be dangerous to employees in the discharge of their duty. Did they find the circumstances such that the failure to guard was a negligent failure’as provided by sec. 1636jj in its letter and by sec. 1636/ as the same has been construed? No question was submitted specifically on that point, but the matter was covered by the manner in which the jury were instructed regarding the interrogatory as to whether the gear was so located as to be dangerous to employees in the discharge of their duty. The judge was very particular on this point, seemingly, fully appreciating that whether the situation was within the statute was not dependable upon what the jury
“By dangerous as here used is meant such condition existing that an ordinarily prudent and intelligent employer, under all the circumstances stated in the question, ought reasonably to have foreseen .that an injury to the oiler might probably occur by reason of the location and condition of such gearing.”
Generally speaking such an instruction should not be confined to the particular employee but include all employees in the particular factory. That is not material here because no one except the oiler could, within reason, have been thought of as likely to come in contact with the uncovered gear. So it will be seen that the jury found the condition to have been respecting the duty to guard, within the statute according to the construction thereof in West v. Bayfield M. Co., supra.
The next question covered the-subject of whether the statutory duty was performed. In respect thereto the jury found that defendant failed “to have said gearing securely guarded or fenced at the time of plaintiff’s injury.” The instruction at this point made prominent the idea that negligence was the controlling feature of actionable fault. The court said, “a gearing is securely guarded or fenced when it is so guarded or fenced that it would not be dangerous to any employee required to work in its vicinity if such employee uses ordinary ■care for his own safety.”
Here we may well remark, in passing, that while the instruction was sufficient for the case it was too restrictive to be a safe model for all cases. So far as necessary to this case it followed Powalske v. Cream City B. Co. 110 Wis. 461, 86 N. W. 153; Miller v. Kimberly & C. Co. 137 Wis. 138, 118 N. W. 536; and similar cases. The language of the statute is not that the particular situation shall be
So the jury found the statutory requisite of culpable negligence, viz., duty to guard — because it was negligence not to do so in that, as said in Powalske v. Cream City B. Co., “a person of ordinary intelligence and prudence, circumstanced as defendant’s officers or those having charge of its business were,” would have apprehended that otherwise it “might probably cause a personal injury to some employee while in the discharge of his duty” — and failure to guard. That would seem to have left, in due course, only the question of whether the culpa in an unbroken chain of circumstances reached the point of injury and efficiently produced it — the fault having the essentials of proximate cause, most of which were covered by conclusions already reached — without any efficient contributing negligence of appellant, distinct from the assumption of risk abolished by the statute.
At this point, unfortunately, the trial court injected into the case a somewhat foreign element. The conditions of the statute being satisfied and there being no contributory negligence on the part of appellant, as the jury found, liability followed absolutely, as it seems. The statute as construed leaves no fair room to doubt but that such circumstances as were found make a clear remediable wrong. To inject any other independent circumstance into such a case might well create confusion under any circumstances. To inject such foreign element into the case as in itself controlling might or might not, according to the finding, nullify the statute as regards the particular case.
The foreign circumstance referred to is indicated in this question: “If you answer question No. 6 ‘Yes’ [that is, find
We are not unmindful the trial court may have been misled by some expressions in opinions of this court. It is exceedingly difficult to discuss at length the status of a given situation as regards legal liability, and avoid using any expression which cannot be made to do service in producing error in any other situation. Thus in Lind v. Uniform S. & P. Co. 140 Wis. 183, 120 N. W. 839, it was said, as if referring to a
The same is true of an expression found in Monaghan v. Northwestern F. Co. 140 Wis. 457, 122 N. W. 1066, impracticability of covering gearing without seriously impairing the efficiency and use of the machine of which such gearing forms part, being spoken of as entering into the subject of whether there was negligent failure to guard or fence within the meaning of the statute. Of course, a machine must be kept sufficiently open so the work can practicably be done for which it was designed. So the statute provides for fencing as an alternative for guarding. It is not reasonably to be apprehended that an employee of ordinary intelligence and experience will allow his person to invade the necessarily open places in a machine. Otherwise operations by machinery would be practicably impossible. The question under discussion seems beside the case.. If it were material in any aspect the ladder feature was not, except in so far as a ladder may be considered, under the circumstances, essential to rendering the guard on the gear sufficient. Further, unless the word “guarded” was intended to include the statutory duty
Above all, if the question under discussion and answer, should have the meaning given thereto below, then the answer, it seems, should have been changed to “Yes.” As we see the machine by means of photographs, it was perfectly practical to have boxed the gear in the manner such boxing is ordinarily accomplished in many similar situations within ■common knowledge. It is no answer to that, in view of the record, to insist the evidence shows the gear was boxed so far •as customary respecting such machines; first, because there is no evidence that it is customary to locate such machines •for operation and make no provision for reaching the parts to be oiled and examined from time to time without danger of coming in contact with the gears, as was the fact in this ■case; second, because it seems obvious that such exposed gears ■can be easily fenced so an employee can do his work about the machine in the exercise of ordinary care without danger ■of being perilously near thereto.
Following the last question treated the jury found that '“such failure to guard and fence the gearing” was not the proximate cause of the injury to appellant. There, it will be seen, the term “guard” as well as the term “fence” was used in the conjunctive, preceded by the word “such,” while the antecedent found in the preceding question is “guard” and the court in the opinion on the motion after verdict and Before judgment ■ gave point to the idea that only failure to '“guard” was involved.
It seems best to speak of these numerous errors and inad-vertences as an indication of the care required to avoid such results as happened in this case. It is not to be wondered at that the jury, after having reached the question under discussion, were perplexed as to their duty in respect thereto
The secrets of a jury room should not be disclosed in the public way indicated, if at all, till the final delivery into court. Till the end it is competent for the jury to change answers according to their convictions.
It is further not to be wondered at that the meaning of the verdict at last has to be read by the court out of some obscurity by construction, or that there has been difference of opinion up to this time whether it, was read rightly, and differences among the jurors leading them after they were discharged to interview the judge in respect to what they intended to find and to make conflicting affidavits in respect thereto.
It is considered that the question under discussion should have been answered in the affirmative, as a matter of course,, following the answers finding all the conditions of culpable negligence. Looking at such found conditions, the instructions, and the undisputed evidence, there was no room for fair controversy but what failure to comply with the statute was the proximate cause of the injury.
If, as the trial court thought, the disturbing ladder feature, given such unnecessary prominence, was supposed by the jury to cut such figure that they could not find the failure to guard and fence the gear of .itself, was the proximate cause of the injury, and so answered the question as they did, then such finding was, in effect, that failure to guard and fence, under the circumstances, was such proximate cause. That would be sufficient for this case in any aspect. So, as counsel for appellant viewed the question, the answer
It follows that the judgment must be reversed as erroneous, but not, necessarily, that the case must go back for judgment in favor of appellant for the full amount claimed. This court is not bound by any arbitrary rule in respect to the status of the case upon reversal. It is free, under the wise policy of the Code, to send the case back for a new trial, if justice requires it, otherwise not. Justice is the dominating feature of the Code and it is the policy of this court to vitalize that feature upon every proper occasion. To that end cases are uniformly so disposed of as to terminate litigation wherever that can justly be done. The interests of both parties, if not their mutual desires, require it; the interest of the public demands it; the spirit of the Code commands it.
We are well satisfied that the verdict of the jury was excessive. The trial court would have been justified, without motion, in allowing judgment in appellant’s favor only upon condition of his remitting a large part of the jury award. On motion to that effect it would have been plainly the court’s duty to have required such remission. That could have been done then and can now be provided for, compelling respondent to submit to a stated amount at the option of appellant, without prejudicially interfering with the right of trial by jury, if such amount be placed as low as in any reasonable probability any future jury, rightly instructed as to the law and with proper conception of their duty, would be
Tbe appellant was forty-five years of age. He was without any educational fitness for any vocation having never attended school hut three weeks. He was a common laborer, had never been and had no reasonable prospect of ever being anything else. His monthly earnings, when he worked all the time, were possibly as high as $65. He lost the first and second and part of the third finger. He lost in wages up to the time he recommenced work after he was injured $150 to $160. After that he lost about a week’s time upon the occasion of having the third finger amputated. Respondent paid substantially all his medical and surgical expenses. His working capacity, as to some kinds of labor, was somewhat impaired, he suffered the usual amount of pain in such cases, and his hand will not sustain the former amount of use. However, his earning capacity was not greatly diminished. He was taken back after the injury at a raise of wages, the disability not interfering with that kind of work. He worked in his old position quite a long time, then left ■of his own accord and thereafter did substantially full work cutting cordwood, making ties, and performing other labor. 'The hand, down to the trial, continued to trouble him somewhat.
We have endeavored to give a pretty full statement of all there is in the case on which to base an assessment of damages. It is easily seen that the elements measurable with any great degree of certainty are rather small. It is useless to try to name an equivalent for parts of the human body. That subject runs so deeply into the field of conjecture as to render losses caused by deprivation of such parts recoverable on the basis of what one would take as an equivalent, ' impracticable. The naming of a money equivalent for pain and some other matters proper to be considered also go into
The expectation of appellant’s life by the ordinary rules is about twenty-four years. His earning cajiacity, in the-whole, for that time, appreciating that such a man rarely averages after the age of forty-five to work anywhere near-full time for the rest of his life and at full wages, would not. very greatly exceed the jury award. Forty-five hundred dollars is equal to a life annuity, purchasable in any standard insurance company, equal to more than two thirds appellant’s-working -capacity for the balance of his days.
Without carrying the logic of the situation further it must-be apparent that $4,500 for appellant is beyond all reason and that a jury of sensible men properly instructed might place the recovery as low as half that sum. The proper-amount of the recovery would probably be the only vital question on another trial. Doubtless the best interests of all parties would be best subserved by having -the controversy closed on the basis indicated, and we will so dispose of the-case as to render that possible at the option of appellant.
By the Court. — The judgment is reversed, and the cause remanded for a new trial, unless plaintiff elects within thirty days after filing the remittitur in the court below to take judgment for $2,250 and costs, which he may do, if he so-elects, on motion therefor and on due notice in the trial court..
Concurrence Opinion
(concurring). In this case there was a special verdict as follows: (1) Had the defendant, prior to plaintiff’s said injury, provided a step-ladder for the oilers-to use in connection with the pump in question ? Answered,,
The circuit court, after denying the plaintiff’s motion to change the answers to the seventh and eighth questions from “No” to “Yes” and for judgment, and the defendant’s motion to change the answers to the first and ninth questions from “No” to “Yes,” ordered as follows:
“It is further ordered that the motion of the defendant for judgment upon the verdict be and the same hereby is granted, and it is ordered that the clerk enter judgment herein upon the special verdict in this action, dismissing the plaintiff’s complaint upon the merits and for costs in favor of defendant against the plaintiff.”
The plaintiff appealed from a judgment entered pursuant to this order. The decision of this court, in which I concur, is that this judgment of the court below be reversed and that the plaintiff is entitled to judgment on the verdict above set forth. The requirement that plaintiff remit part of the damages found by the jury in order to entitle him to j'udg
The defendant failed to provide a step-ladder for the oil-ers to use. The gearing by which plaintiff was injured was so located as to be dangerous to an oiler in the discharge of his duties while using ordinary care. The defendant failed to have the said gearing securely guarded or fenced. It was practicable to have securely guarded the gearing so as to render it reasonably safe for plaintiff to perform his duties. The failure to securely guard the gearing was the proximate cause of plaintiff’s injury. There was no contributory negligence.
The verdict having been allowed to stand establishing the foregoing facts, the introduction of detailed evidential facts
It is quite unnecessary to reiterate a dissent. I should not do so here but for the fact that the majority opinion, goes out of its way to bring in West v. Bayfield M. Co. 144 Wis. 106, 128 N. W. 992, as a sort of harbinger of this case, and laboriously and lamely attempts to vindicate that decision as controlling this case notwithstanding my dissent in the West Case and my concurrence in this case. The real point decided in the West Oase was that the jury was misinstructed
(a) “The conditions of the statute being satisfied and there being no contributory negligence on the part of appellant, as the jury found, liability followed absolutely, as it seems. The statute as construed leaves no fair room to doubt but that such circumstances as were found make a clear remediable wrong. To inject any other independent circumstance into such a case might well create confusion under any circumstances.”
(b) “The intent of the statute is that if an employer maintains a situation within it, which as an ordinarily prudent man he ought reasonably to apprehend may cause a personal injury to any of his employees in the discharge of his duty, he must hold himself responsible for the consequences proximately. produced thereby to any such employee without his contributory negligence. In that situation the rule of the statute is inexorable.' The charity of the law as to the employer has been exhausted. There are only left its penalties, from which there is no escape under the law as it stands. It is no defense or excuse as regards civil remedies that it is not practicable to guard against the danger, or to efficiently do so without some particular instrumentality, as in this cas¿ a ladder. If such particular instrumentality is essential to an effective guarding or fencing, then failure to supply it as here, is involved in and part of the failure to securely guard or fence.”
(c) “We fully agree with counsel for appellant that the statute prohibits a person from using machinery under such conditions that, from the standpoint of ordinary care, the situation will imperil the personal safety of his employees in the discharge of their duties in the exercise of ordinary care. It is no answer to a case satisfying the statutory conditions that it was impracticable to comply with the statute. The police power, as the statute has been construed, was not exceeded in passing it. Therefore, the duty to comply therewith is absolute.”
(d) “There was no thought, however, of holding, as to a case within the statute — one where a reasonably prudent man would or might reasonably apprehend injury to his em*568 ployees or some one of them in the discharge of dnty in the exercise of ordinary care without the protection contemplated by the statute — that unreasonable interference with operations by providing such protection, is a defense for failure to do so.”
Each and every of the foregoing (a), (b), (c), and (d) is to my mind inconsistent with the broad statements contained in the majority opinion in the West Case and inconsistent with the quotation from that opinion approved in the majority opinion in the instant case. I am unable to detect any substantial difference between a duty to exercise ordinary care and “an absolute duty to exercise ordinary care.” There is no doubt an important distinction between a rule which requires one to do or omit to- do a designated act and a rule which merely requires one to exercise ordinary care. The common, law presented instances of each rule. As the case of cattle straying from the premises of the owner and cattle escaping from custody while being lawfully driven on the highway. Metropolitan C. Ins. Co. v. Clark, ante, p. 181, 129 N. W. 1065. An innkeeper, like a carrier, was liable for all goods of his guest lost in the inn unless the loss happened by act of God or by that of a public enemy or by negligence of the owner of the goods. 22 Cyc. 1081 and cases. But in respect to the guest himself the duty of the innkeeper was only to exercise ordinary care for his safety. Td. 1080. Obligations or duties to another may be imposed by contract, by common-law rule, or by statute. Contract obligations or duties requiring specific things'to be done or omitted can never be discharged by merely showing that the defendant exercised ordinary care but nevertheless failed. 9 Cyc. 625 et seq. The same is true as regards common-law duties or obligations which require some specific thing to be done or omitted. And the same rule applies to statutory duties or obligations. Monteith v. Kokomo W. E. Co. 159 Ind. 149, 64 N. E. 610, 58 L. R. A. 944; Deserant v. Cerillos C.
“It should he remembered that the injury resulted directly from contact with an uncovered gearing, the presence of which was not only unlawful under sec. 1636), Stats. (1898), and therefore negligent, but might also have been considered negligence on the part of the defendant independently of such statute.”
“Negligence may consist in a failure to conform to a specific rule of law or in a failure to act as a man of ordinary prudence would act under the same circumstances. When the act or omission violates a specific rule of law, it is negligence as matter of law.” 2 Oooley, Torts (3d ed.) 1433. Neglect of statutory duties. Id. 1404, 1408.
Nrom these authorities I think it is apparent that where the duty is specific, as in the statute in question, and one to whom the duty is due is injured by a breach thereof without fault on his part, a right of recovery is shown. The statute in question is neither doubtful nor obscure, except as it has "been made so by decisions of this court, where, according to the opinion of the majority, “almost every available phase of the subject has been judicially treated and some of them
“Absence of the guard was negligence per se. A failure to perform the duty so imposed constituted actionable negligence at the suit of the person of that class injured by the failure of duty without contributory negligence on his part.”
But it is said: “It may be that all who concurred in Klatt v. N. C. Foster L. Co., supra, did not intend to hold that mere failure to comply with the statute was sufficient to create an inference of culpable negligence as matter of law.” We have no way of judging what they intended to hold except from the language used and approved as applied to the questions before the court, and there is nothing in that language to throw doubt upon their intention. Following the statement that it may be that all who concurred in Klatt v. N. C. Foster L. Co. did not intend, etc., there is a reference to and some discussion of Burns v. C., M. & St. P. R. Co.