Yess v. Chicago Brass Co.

Cassoday, C. J. It is alleged in the complaint that the defendant was negligent in failing to furnish the plaintiff with a reasonably safe place in which to work while operating' the machine, by allowing oil to accumulate upon the floor; also that the defendant was negligent in setting the plaintiff at work upon a machine which could not be stopped when in use under tension, and failing to instruct him that it could not be stopped when so in use, and instructing him that it could be stopped by means of the lever mentioned in the foregoing statement of facts. In opening the case to the jury the plaintiff’s counsel claimed that each of such two grounds of negligence was the proximate cause of the plaintiff’s injury. Thereupon óounsel for the defendant gave notice that they would object to any evidence tending to prove two different proximate causes of the injury, not concurrent, and demurred to the complaint ore tenus on that and other grounds. The court reserved its ruling. Testimony'was then given on the part of the plaintiff as indicated in the-foregoing statement. Among other things it tended to prove- that the machine could not be stopped, when under tension, except by breaking or cutting the bar that was being wound up or cutting the belt; that the plaintiff was not instructed as to that fact, and had no information in respect [411] to it until the accident in question; that he was told hy the defendant’s superintendent that the way to stop the machine-was to put his foot on the lever. That was true when the-machine was not under tension, but was not true when the machine was under tension, as indicated in the foregoing statement. At the close of the direct examination of the plaintiff in his own behalf, the court, on motion of the defendant, struck out all testimony concerning the alleged failure of the de.-fendant, its officers or agents, to inform the plaintiff as to the manner of operating the machine, for the reason that under the pleadings and the law, upon which the plaintiff must rely, the proximate cause of the plaintiff’s injury was the presence of oil upon the floor upon which the plaintiff slipped at the time of the accident. Subsequently other testimony on the part of the plaintiff was excluded on the same ground. At the close of all the testimony on the part of the plaintiff his counsel asked to have stricken out of the record what appeared to he his statement at the opening of the trial respecting two proximate causes of the injury, for the reason that it did not contain all that he had said at the timé, in that it failed to state that he relied principally upon the negligence of the defendant in furnishing an unsafe machine and failing to instruct the plaintiff of its dangers. Thereupon the court granted the defendant’s motion for a nonsuit, based upon the pleadings as explained hy the plaintiff’s ■ counsel at the time-of opening the case to the jury. 1. That motion was manifestly granted on the ground that such presence of oil upon the floor was so obvious to any man-of ordinary intelligence, during the five or six weeks the plaintiff had worked upon the machine, that he knew or ought to have known of its presence and the danger of slipping thereon; and hence that he must be deemed to have assumed the risk. Stephenson v. Duncan, 73 Wis. 404, 41 N. W. 337; Peterson v. Sherry L. Co. 90 Wis. 83, 62 N. W. 948; Hazen [412] 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; Foss v. Bigelow, 102 Wis. 418, 78 N. W. 570; Sladky v. Marinette L. Co. 107 Wis. 260, 261, 83 N. W. 514; Koepcke v. Wis. B. & I. Co. 116 Wis. 92, 92 N. W. 558. It follows that, however negligent the defendant may have been in allowing oil to accumulate upon the floor, it was no ground for recovery in this action. Nevertheless, it was one of the facts in the case tending to show the circumstances under which the plaintiff was required to operate the machine. ' 2. The important question in the case is whether it was error to exclude testimony tending to prove that the machine could not he stopped while in use and under tension, and that the defendant failed to inform the plaintiff of that fact, and that the instructions given were to the contrary. Such ruling is claimed to he justified hy a recent decision of this court. Pautz v. Plankinton P. Co. 118 Wis. 47, 51, 94 N. W. 654. In that case the defective wooden wheel transmitted power to 'the defective iron wheel which broke; and it was held that the -defective wooden wheel was the sole proximate cause of the 'injury — that it was the originating and efficient cause which set the defective iron wheel in motion and produced the result. We have no such condition here. The oil on the floor may have made the place more dangerous for the plaintiff to do his work in. The same would be true of exposed machinery or other obstructions. There was no defect in the machine itself. It moved very slowly, and in the direction from the operator whose hands were expected to come in contact with it. The danger consisted in the inability to stop the machine while under tension in base his hand got so far into the machine as to be caught. The oil on the floor did not create that danger. Nor was there any necessary or natural causal connection between the oil on the floor and such inability to stop the machine. The oil on the floor may have been •.the originating cause of the plaintiff’s injury, but we cannot [413] say from the evidence, as a matter of law, that it was “the’ efficient cause” of the injury, as defined by this and other' courts. Deisenrieter v. Kraus-Merkel M. Co. 97 Wis. 279, 72 N. W. 735; Pautz v. Plankinton P. Co. 118 Wis. 47, 51, 94 N. W. 654, and cases there cited. In the first of these two cases the jury found that the plaintiff sustained the injury “by falling upon uncovered machinery after being rendered unconscious by the fumes of gas escaping from a kiln in a room below where he was at work.” This court has held that : “An employer who was negligent in keeping a large rotary saw partially uncovered is not relieved from liability for an injury to an employee by the fact that an accidental slip of' the employee’s foot combined with said negligence of the employer to cause the injury.” Darcey v. Farmers' L. Co. 87 Wis. 245, 58 N. W. 382; S. C. 91 Wis. 654, 65 N. W. 491; S. C. 98 Wis. 573, 74 N. W. 337. See, also, Shepherd v. Morton-Edgar L. Co. 115 Wis. 522, 92 N. W. 260. Thus it is said in a recent work on the subject of negligence that: “Where, in a' suit for personal injuries due to defective-machinery, it appears that the defect (insufficiently protected knives) wa,s due to the defendant’s negligence and was the immediate cause of the injury, the fact that the initial and’ moving cause was the plaintiff’s slipping on the floor, in which-respect the defendant was not negligent, will not preclude a recovery.” 4 Thompson, Comm. Law Neg. § 3857. In support of that proposition the learned author cites,., among other cases, Swift & Co. v. Holoubek, 60 Neb. 784, 84 N. W. 249 ; S. C. 62 Neb. 31, 86 N. W. 900; Scandell v. Columbia C. Co. 50 App. Div. 512, 64 N. Y. Supp. 232. Of course, under our decisions cited it is not necessary that the-proximate cause of the injury should be the immediate cause-of the injury. According to the evidence on the part of the-plaintiff in the case at bar, he was informed that he could stop the machine at any time by stepping upon the lever, but as a matter of fact it could not be so stopped while in use and! [414] under tension. That fact was not open and obvious upon inspection. The trial court ruled out the evidence as to those facts, and thereby, in effect, held as a matter of law that the failure of the defendant to notify the plaintiff of such concealed danger was not actionable negligence. After careful consideration we are forced to the conclusion that such ruling was error. Thompson v. Edward P. Allis Co. 89 Wis. 523, 62 N. W. 527; McMahon v. Ida M. Co. 95 Wis. 308, 70 N. W. 478; McDougall v. Ashland S.-F. Co. 97 Wis. 382, 73 N. W. 327. In the last of these cases it was held that: “If a master employs a servant to do work in a dangerous place, or where the mode of doing the work is dangerous, though apparent to a person of capacity and knowledge of the subject, yet, if the servant employed to do such work or in such a place, from youth, inexperience, ignorance, or want of .general capacity, may fail to appreciate the danger, it is a breach of duty on the part of the master to expose him to such dangers, even with his own consent, unless he first gives him 'instructions or cautions sufficient to make him comprehend them and do his work safely, with proper care on his part.” See, also, Jensen v. Hudson S. Co. 98 Wis. 73, 82, 73 N. W. 434; Shepherd v. Morton-Edgar L. Co., supra. By the Court. — The judgment of the circuit court is reversed, and the cause is remanded for a new trial.