Walaszewski v. Schoknecht

Cassoday, C. J. Counsel for the plaintiff contends that the defendant was negligent in failing to furnish the plaintiff with a reasonably safe place in which to perform his work or to warn him of .the danger in working where he did. The trial court did not pass upon that question, and for the purpose of this appeal we shall assume that the evidence was sufficient to take the case to the jury on the question of the defendant’s negligence. The verdict was directed in favor of the defendant, on the ground that it appeared from the undisputed evidence that the dangers of doing the work were open and obvious and hence that the plaintiff assumed the risk. After careful examination we are constrained to hold that such ruling was correct. The plaintiff was sixty-four years of age and in the habit of doing all kinds of labor, and we must assume that he was a man of ordinary intelligence. As such he must have known that in taking down the building-fragments were liable to fall from the upper portions thereof. In such removal of buildings as in the original erection and' construction of buildings, the rule that the master must furnish a safe place to work can have but very limited application. In doing such work new adjustments and changes are-continually going on from which danger may arise, against which no forecast can provide or warning be given. Porter v. Silver Creek & M. C. Co. 84 Wis. 418, 424, 54 N. W. 1019; Larsson v. McClure, 95 Wis. 533, 70 N. W. 662; Mielke v. C. & N. W. R. Co. 103 Wis. 1, 79 N. W. 22; Liermann v. Milwaukee D. D. Co. 110 Wis. 599, 601, 86 N. W. 182: Kath v. Wis. Cent. R. Co. 121 Wis. 503, 514, 99 N. W. [379] 217. In the performance of such work an employee of mature years must be presumed to have ¡mown and appreciated' all such risks of tire employment as were open and obvious to a man of ordinary intelligence, and he must be regarded as’ having assumed the risk of all such .dangers as he knew of or could have discovered by the exercise of ordinary care. Osborne v. Lehigh Valley C. Co. 97 Wis. 27, 29, 71 N. W. 814, and cases there cited; Mielke v. C. & N. W. R. Co. 103 Wis. 1, 3, 79 N. W. 22; Sladky v. Marinette L. Co. 107 Wis. 250, 261, 83 N. W. 514. It follows that there was no error in. directing a verdict for the defendant. By the Court. — The judgment of the circuit court is affirmed.