Koepcke v. Wisconsin Bridge & Iron Co.

Dodge, J. The peril to which plaintiff’s decedent was -subjected, from which he suffered, and which constituted the negligence charged upon the defendant, was that resulting from his standing upon two transverse timbers, respectively six inches and four inches of surface, at an elevation of nineteen feet above the ground, while he indulged in the exertion necessary to the prying of the belt from the pulley. It is difficult to conceive of a peril more obvious to the man of •ordinary intelligence. The size of those timbers, the inse-.cure foothold thereby afforded, and the danger of falling, -either from slipping or loss of balance under the exertion necessary to the throwing of the belt, are matters completely within the common knowledge of all. These conditions had 'been before the eyes of the deceased for some two months, while his duties required him to move about upon this and •.similar scaffolding; but, whether they had or ought to have been noticed by him during that period, they were plain before his eyes at the moment when he exposed himself to them. When he stepped from the broader foothold and safeguarding railing, which were upon the north side of the pulley, around vonto this less secure and unprotected place, he must have [95] done so with full knowledge or blind eyes. The effect of this view upon his right to charge his employer with liability for the ordinary and natural'result of* his act is so well settled, as matter of law, that it needs barely statement. He thereby assumed the risk of such result, and, whether there be or be not negligence on the part of the master in providing such appliances, his own contributory negligence in attempting to work under such circumstances must preclude recovery. Helmke v. Thilmany, 107 Wis. 216, 83 N. W. 360; Hencke v. Ellis, 110 Wis. 532, 86 N. W. 171. Appellant urges upon us a somewhat philosophical discussion which may be found in some text-books, illustrated by decisions from various courts, involving the inquiry whether the doctrine of the employee’s assumption of the risks known to him, as á defense to the employer’s liability for negligence, rests upon contract or upon the idea of negligence in the employee ; contending for the former view, and thereon predicating the deduction that, as deceased was legally a minor, he could not be bound by his own contracts. Such a discussion before this court is certainly academic. By a long line of cases it has become settled here that so-called assumption of the risk is but a phase of contributory negligence. Conceding that the employer negligently furnishes an unsafe place, the employee, who with knowledge consents to work therein, is himself guilty of negligence which is obviously as proximate a cause of any injury to him as is the maintenance of the place itself; hence he is precluded from recovery against his employer for those results. The citation of a few of the later eases may certainly relieve us from the necessity of a reconsideration of that subject: Darcey v. Farmers’ L. Co. 87 Wis. 245, 58 N. W. 382; Hazen v. West Superior L. Co. 91 Wis. 208, 64 N. W. 857; Powell v. Ashland I. & S. Co. 98 Wis. 35, 73 N. W. 573; Dugal v. Chippewa Falls, 101 Wis. 533, 77 N. W. 878. Error is assigaed on exclusion of testimony tending to [96] show that other places in the factory, where deceased had previously had occasion to cast off belts, were provided with twelve-inch planks to stand on, and a railing. From this ruling we can discover no prejudice to appellant Whether or not it might have tended to prove the place of injury unusually or negligently dangerous, it in no way tended to overcome the undisputed fact that the situation was entirely obvious. If it served to prove or enhance defendant’s negligence, it in noway tended to lessen that of the deceased, upon which the nonsuit was predicated, and-is now approved. By the Court. — Judgment affirmed.