124 Wis. 328 | Wis. | 1905
The complaint in this action, as originally drawn, charged as one ground of actionable negligence that the defendants carelessly and negligently turned on the electric current without notice to the deceased, and knowing that the deceased was either working upon or likely to be working;
The main questions in the case, however, are the question whether the evidence showed any liability on the part of the defendants and the question whether the charge of the court was erroneous. The test of ordinary care given in the charge is certainly inaccurate, and we can but regard the inaccuracy as prejudicial. Ordinary care has been frequently defined by this court as that degree of care usually or ordinarily exercised by persons of ordinary care and prudence (or the great majority of people) engaged in the same or similar business under the same or similar circumstances. Rylander v. Laursen, ante, p. 2, 102 N. W. 341, and cases cited. Comparing this long-established rule with the rule given in the charge, it is apparent that an important element has been omitted. The people whose ordinary conduct is to be the
Proceeding to a critical examination of the general character of the charge, we confess that we have experienced great difficulty in ascertaining upon what theory this case was submitted to the jury. The alleged defective insulation of the wires was eliminated from the case, as will be seen by instruction No. 14. The court charged positively that the defendant lumber company could only be held liable if it failed either (1) to furnish a reasonably safe place to work, (2) to provide reasonably safe and proper tools, or (3) to provide reasonably competent and careful co-employees. In immediate connection with this proposition the court charged, in effect, that there was no evidence that the defendant company had failed to provide either safe and suitable tools or careful and competent co-employees, and that the company could not be found negligent on either account. Thus both the second and third grounds of possible' liability on the part of the defendant company were excluded from consideration, leaving only the question of the failure to furnish a safe place to work. But, after the claim of defective insulation is negatived, the electric light pole, where the plaintiff’s intestate was engaged at work, appears to have been as safe as such places are ordinarily made. There was no danger save the necessary danger arising from the fact that it carried two electric wires which might at any time be charged with a deadly current of
At this point the plaintiff seems to- have been charged out of court, so far as any claim against the lumber company is concerned; but the court then proceeds to say, in substance, that it is for the jury to say whether defendants, or either of' them, were guilty of such an act of negligence as should compel them to respond in damages; that the plaintiff’s claim is' that Rogers’s failure to notify Williams was actionable negligence, while defendants’ claim is that they used ordinary caution and foresight under the circumstances; that it is for the jury alone to say what the truth is in that respect; that a verdict cannot be found against either defendant unless such de
However this may be, the consideration of the motions to direct a verdict for the defendants and for judgment non ob-stante calls for general discussion of the law applicable to the case and renders it unnecessary to pass upon the correctness of the various propositions of the charge in detail. When the evidence in the case closed, the only ground upon which liability could be reasonably claimed against either defendant was the ground that the turning on of the electric current without warning constituted actionable negligence. So. far as the defendant lumber company was concerned, the solution of this question depended primarily upon the question, whether Rogers was a vice-principal or a co-employee in the-performance of that act.
There are certain duties which the master owes to his employees which he cannot delegate. These are the duty to furnish a reasonably safe- place to work, considering the nature of the work'in hand; the duty to furnish reasonably safe tools and appliances; the duty to provide reasonably competent and careful fellow-servants; and the duty to warn an employee of latent dangers in the work which the employee cannot, in the exercise of ordinary care, be expected to ascertain. Portance v. Lehigh Valley Coal Co. 101 Wis. 574, 77 N. W. 875; Baumann v. C. Reiss Coal Co. 118 Wis. 330, 95
The present case falls within this principle so far as the defendant company is concerned. The changing of the armature was a detail of the business which might properly be left to the employees themselves. In making this change and testing the operation of the dynamo after the change was made, Rogers was acting as a fellow-servant, and for any negligence committed by him therein the master was not liable; and a verdict should have been directed.
Whether Rogers’s act was negligent so as to impose liability upon himself, and whether the deceased was guilty of contributory negligence, were questions for the jury under proper instructions.
By the Court.- — Judgment reversed upon both appeals, and action remanded with directions to enter judgment for the defendant lumber company, and to award a new trial as to the defendant Rogers.