Yazdzewski v. Barker

Winslow, J. It is strenuously contended by appellants that a verdict for the defendants should have been directed because (1) no negligence on the part of the defendants was shown; (2) it appeared that the injury resulted from the negligence of a co-employee; and (3) the plaintiff assumed the rish. In support of the first: proposition it is said that the evidence conclusively showed that open edgers of the kind in question without guards were in general use in the lumber mills of northern Wisconsin, and hence that there can be no finding of negligence based on the failure to provide guards. While there was much evidence tending to show that such unguarded edgers were in general use in other mills, this is not a conclusive test upon the question of negligence, as we shall endeavor to demonstrate later in this opinion in discussing the alleged error in the instructions relating to the second question of the special verdict As to the second and third propositions, we think it clear from the evidence that the court would not have been justified in directing a verdict for the defendants on either ground. A far more serious question is raised, however, by the exceptions to the instructions given by the court with reference to the second question of the verdict. In submitting this question the court said: “If you find from the evidence that open edgers and edging •machines in which there were neither press rollers nor fingers nor any other appliance, device, or contrivance in front of the saws were in general use in the sawmills of northern Wisconsin at the time plaintiff sustained the injuries described in the complaint, you may answer question No. 2 ‘Yes,’ but if you find that such open edgers were not reasonably safe to the employees operating the same you will answer the question by ‘No/ " The question submitted was whether the machine was reasonably safe, and the substance of the instruction was that if such machines were in general use then they were reasonably safe unless the jury concluded that they were not rea [498] sonably safe; in other words, the fact of general use cut no figure in answering the question. In the last analysis the instruction says that the machine was not reasonably safe if you conclude that it was not, whatever be the fact as to the general use of such machines. We cannot approve this instruction. The rule of law undoubtedly is that when an employer furnishes to his employee a place to work in, or an appliance to work with, it is his duty to furnish a reasonably safe place or appliance. This duty is absolute and cannot be delegated. Howard v. Beldenville L. Co. 129 Wis. 98, 108 N. W. 48. The general rule is also that if the employer furnish such a place or appliance as is in general use amo-ng employers of ordinary caution and prudence in the same line of business under the same circumstances, he has discharged the duty imposed on him. The place or appliance so furnished is in a legal sense “reasonably safe.” Guinard v. Knapp-Stout & Co. Co. 95 Wis. 482, 70 N. W. 671; Prybilski v. N. W. C. R. Co. 98 Wis. 413, 74 N. W. 117; Sladky v. Marinette L. Co. 107 Wis. 250, 83 N. W. 514. Many courts apply this rule without exception or limitation. 4 Thomp. Commm. on Neg. §§ 3991—3993; Ship Bldg. Works v. Nuttall, 119 Pa. St. 149, 13 Atl. 65. This court, while approving this general rule, has adopted a limitation thereon in consonance with what, seems to us a more just and enlightened policy. That limitation is that the employer will not discharge his duty by furnishing the ordinary place or appliance, if such ordinary place or appliance be obviously dangerous. Innes v. Milwaukee, 96 Wis. 170, 70 N. W. 1064; Boyce v. Wilbur L. Co. 119 Wis. 642, 97 N. W. 563. The word “obviously” as here used does not apply to any person, however unskilled or ignorant, for in such case the employee would always assume the risk, and the exception would be no exception at all, but “obviously” to the ordinarily careful employer who is charged with the duty of furnishing the place or appliance, or “obviously” to a person possessing equal skill and judgment and opportunity for examination [499] as such an employer. Doubtless' tbis was the limitation on the general rule which the trial judge had in mind when he added the last clause to the instruction quoted, but it is evident that the clause does not convey the idea, but rather eliminates the rule entirely. A number of other rulings are complained of by the appellants, but we have found no prejudicial error save that above named. The claim that the question of the negligence of a co-employee, to wit, the edgerman, should have been submitted to-the jury cannot be sustained. We find no evidence tending to show that the edgerman-was guilty of any negligence. Apparently he- was performing his duties 'in the usual manner. The verdict was undoubtedly unnecessarily long; The only material disputed questions were: (1) Whether the edger was a reasonably safe machine. (2) If not, was the failure to furnish a reasonably safe machine the proximate cause of the plaintiff’s injury? (3) Was the plaintiff guilty of contributory negligence by way of assumption of the risk ? (4) .What damages has the plaintiff suffered ? By the Court. — Judgment reversed, and action remanded for a new trial. Kerwin, J., dissents.