Powalske v. Cream City Brick Co.

Maeshaul, J. Though the complaint charges respondent with three distinct breaches of duty, it is not claimed that any was established by the evidence except that involved in the question of whether the unguarded shaft was so located as to be dangerous to appellant in the performance of his duty as one of the respondent’s employees. Sec. 1636/, Stats. 1898, provides that, “The owner or manager of every place where persons are employed to perform labor shall securely guard or fence all . . . shafting . . . which is so located as to be dangerous to employees in the discharge of their duty.” Now, if it would not be reasonable to say, on the facts of this case, that the shafting in question was so located that respondent, in the exercise of that care for the safety of its employees which is contemplated by the statute, ought to have apprehended that it might probably cause a personal injury to some one of them, appellant’s case failed at the very outset. 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 [466] in determining -whether machinery should be guarded, and that, in such exercise, they shall bring to bear upon the subject ordinary prudence and intelligence under the circumstances of each particular case. So, whether the shaft in question was dangerous in its unguarded condition, within the meaning of the statute, is not to be determined or necessarily influenced by the mere fact that appellant was injured thereby. If it had been located several feet above appellant’s head as he was about his work, it would still have been possible for him to have been injured by it in many ways that might be imagined. The question is, Would a person of ordinary intelligence and prudence, circumstanced as defendant’s officers or those having charge of its business were, have apprehended that the unguarded shaft might probably cause a personal injury to some employee while in the discharge of his duties ? If not, then the failure to guard it was not a breach of duty to appellant; and if the circumstances of the case upon wliich the conclusion must turn were, upon the evidence, so clearly in favor of respondent as not to reasonably admit of a finding to the contrary, manifestly it was free from the charge of actionable negligence upon which appellant contends the case should have been submitted to the jury, and the nonsuit was properly granted. It is said that the question of whether the shaft should have been guarded was for the jury. Expressions to that effect may readily be found in legal opinions, but the authors thereof anticipated that they would be read in the light of settled principles of law. This language was used in Guinard v. Knapp-Stout & Co. Company, 95 Wis. 482. “ Whether the statute requires such machinery to be covered or guarded depends upon whether it is ‘ so located as to be dangerous to employees when engaged in their ordinary duties.’ . , . That is a question of fact for the jury.” Manifestly, the court was speaking with reference to the evidence in that [467] case. As a general proposition, such a question is to be solved in the same way as any other question of fact. In this case, if the evidence showed that the unguarded shaft was so located as to be dangerous to employees in the discharge of their duties, with such clearness that reasonable minds could not reasonably differ in respect thereto, it was for the court to solve the question at issue as one of law, and the same is true if the unguarded shaft was shown to have been so located as not to be dangerous to employees while in .the discharge of their duties, with such clearness that reasonable minds could not reasonably differ in regard thereto. It is the duty of the court, where such a question is presented, upon motion therefor, to decide whether there are conflicting reasonable inferences from the evidence as to where the truth lies, and, upon a decision in the affirmative, to send the case to tbe jury to decide which is the proper inference to be drawn. The court has no right to refuse to judicially determine the first question suggested, and no right to go further and invade the province of the jury by passing upon the second question mentioned. Here the court decided that there was no room in the evidence to reasonably decide but one way, as to whether the statute required the shaft to be guarded; and that decision, and the result of it, must be sustained unless we can say that it is clearly wrong. Powell v. Ashland I. & S. Co. 98 Wis. 35; Dewey v. C., M. & St. P. R. Co. 99 Wis. 457; Maanum v. Madison, 104 Wis. 272. It seems to us, the rule applies to the facts of this case, that, where a danger is so located that a person must necessarily go out of his ordinary course, or any course which he might be reasonably expected to take, in order to reach it, ordinary care and prudence on the part of another, who is in duty bound to guard him from personal injury within the scope of the risk to be reasonably apprehended therefrom, does not require it to be guarded against. Gorr v. Mittlestaedt, [468] 96 Wis. 296. That rule is most often applied in highway cases, but the principle involved reaches every case where duty on the part of one person to guard the personal safety of another is restricted to such dangers as such other is reasonably liable to come in contact with in the ordinary course of events, within particular limits. In Hadley v. Taylor, L. R. 1 C. P. 53, Mr. Justice Wilde stated the rule as to highways in substance thus: Whether a dangerous place near a highway renders it unsafe for public travel depends upon whether a person may be injured thereby from an accident happening on such highway, or whether he must wander from the way to reach such danger. Now it is clear that appellant’s employment did not bring him within the region of danger from the unguarded shaft. The nearest that any one could reasonably have expected his person, as he moved about his work, would probably come to the shaft, was about eighteen inches, at which point it was Avest of and about on a level ivith his breast. When he was so located, a movement directly towards the shaft was quite well guarded against by the large pile of stones under it, which sloped from the pathway along the west side of the cart upward and westward to the height of some four feet. The only way he could reach the shaft was by stepping out of the path and up on the pile of stones. There was no occasion whatever for him to do that. The form of the stone pile and the character of the stones were such that to advance towards the shaft was a somewhat difficult feat. If we admit that the danger of slipping on the stones that were in the pathway, and falling, should be considered, then it seems plain that the location of the shaft was such that the danger of a person, circumstanced as appellant was about his work, reaching the shaft in that way, was so remote as to be regarded as only within bare possibilities,— not an event within reasonable probabilities. In case of one so circumstanced slipping and falling, his course would be down [469] ward, and if, in any event, it were also sideways towards tbe shaft, there would be no danger reasonably to be apprehended of his coming in contact with it. He would fall against the sloping side of the stone pile without reaching the shaft. ¥e are unable to imagine any movement that it could reasonably have been apprehended appellant might probably mate in the course of the ordinary discharge of his duty, that would'bring him in contact with the shaft or within the region of danger therefrom. The connection was made, between him and the danger which caused the injury, by means of the rope that he, in some way, swung around so that the end of it was caught by the shaft. Just how that was done does not satisfactorily appear. It does not even appear so that any one could say, from the evidence, with reasonable certainty, how it probably occurred. Appellant was not able to explain it with any reasonable degree of definiteness. It is sufficient for the purposes of this case, however, that it clearly appears from the evidence that in the ordinary course of events appellant could not reasonably have been expected to be in danger of in any way coming in contact with the unguarded shaft. It necessarily follows that it was not required to be guarded, and the nonsuit was properly granted. By the Court.— The judgment is affirmed.