Williams v. North Wisconsin Lumber Co.

WiNSLOW, J. 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; — 334 — upon the wires, whereby the deceased was killed. The complaint then went on to negative any negligence on the part of the deceased, and stated that the death was wholly caused by the “wilful, wanton, reckless, negligent act of the defendants/’ and by their turning on the electric current knowing that said deceased was working upon the wire. At the opening of the trial the plaintiff moved to amend the complaint by striking out the words “wilful, wanton, and reckless,” and the court permitted the amendment, stating that, if a suffi•cient affidavit of surprise were filed by defendants, the case would be continued at plaintiff’s costs. The defendants excepted to the ruling, but made no claim of surprise. There was no error in the ruling. The clauses of the complaint which were intended to state the gist of the cause of action plainly charged simple negligence, not gross negligence or wilful wrong. The subsequent characterization of the act as “wilful, wanton, and reckless” as well as negligent was plainly contradictory and confusing as tending to introduce an inconsistent cause of action, namely, one based on gross negligence, and it was entirely proper to strike out those words. 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 — 335 — test must be surrounded by tbe same or similar circumstances as surrounded tbe persons whose act is in question. This necessary element is wholly left out, and, instead thereof, it is said that ordinary care is such as is ordinarily used by persons whose conduct is the test “under the facts and circumstances surrounding them (i. e., the persons whose conduct is the'test) at the time.” Plainly, these last-named “facts and circumstances” might well be entirely different from the facts and circumstances surrounding the defendants in the instant case. This instruction, therefore, was erroneous, and necessitates a reversal of the judgment as to both defendants. 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 — 336 — electricity. The failure to warn Williams of the turning on of the current was the act of negligence which was claimed to be the proximate cause of the injury, both in the trial court and by the respondent’s brief in this court. Hence, if the-court was correct in the enumeration of the sole grounds of liability against the company, it seems certain that upon his own theory he should have instructed the jury to return a verdict for the company. But passing from this apparent inconsistency, we find that upon the subject of the failure to give notice the court charged that both in repairing and testing the dynamo Rogers and Fox were fellow-servants of Williams, and that Williams assumed the risk of any injury arising from their negligence in making such, repairs and tests; and, further, that the lumber company could not be found liable simply because Rogers directed the current to be turned on, or because he neglected to inform deceased that the current was about to be turned on. We have been unable to see what question remained as to the alleged liability of the lumber company after the instructions above cited had been given. Not only had the three specific grounds which alone (upon the court’s own theory) would justify a recovery by the-plaintiff been negatived by the court, but the possible additional ground of failure to notify had also been denied by the-court. 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 — 337 — fendant was guilty of negligence, and that negligence is lack of ordinary care. The suin and substance of the charge is that, notwithstanding none of the facts necessary to charge the defendant company with negligence has been proven, and notwithstanding that the failure of Rogers to notify Williams does not render it liable, still, if the jury find the company guilty of negligence which was the proximate cause of the injury the jury may find a verdict against the company. What guide the jury had to determine what act or omission could be called negligence under this charge it is difficult to see. Apparently they were given liberty to pronounce anything negligence which they might choose. 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 — 338 — N. W. 139; Kloshinski v. Shores L. Co. 93 Wis. 417, 67 N. W. 934. When the master has provided a safe place, safe tools, competent and careful co-employees, and has given sufficient warning of hidden or latent dangers, he may doubtless commit to the employees the details of the work, including incidental repairs or readjustment of machinery made necessary by ordinary prosecution of the business, and which can easily be made by the employees themselves from proper materials furnished by the master; and such servants, thus prosecuting the work or making such readjustment or incidental repairs, become fellow-servants, whatever their rank, so that the negligence of one by which others are injured is the negligence of a fellow-servant. Cases illustrative of this principle are numerous. Van den Heuvel v. National F. Co. 84 Wis. 636, 54 N. W. 1016; Dahlke v. Illinois S. Co. 100 Wis. 431, 76 N. W. 362; Okonshi v. Pennsylvania & O. F. Co. 114 Wis. 448, 90 N. W. 429; Grams v. C. Reiss Coal Co. 125 Wis. 1, 102 N. W. 586; Wosbigian v. Washburn & M. Mfg. Co. 167 Mass. 20, 44 N. E. 1058; Cregan v. Marston, 126 N. Y. 568. 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.