Yezick v. Chicago Brass Co.

Siebecker, J. Tbe plaintiff’s objection to tbe dismissal of bis complaint, on tbe ground that defendant’s liability was not established, presents, first, the inquiry: Does tbe evidence tend to show that tbe defendant negligently omitted to furnish plaintiff a safe place in which to work ? It is contended that tbe evidence is sufficient to support tbe claim that tbe floor on which plaintiff worked at the time of injury was defective and unsafe. This claim calls for consideration of defendant’s duty to provide a reasonably safe place for plaintiff to work in tbe double aspect of its duty to furnish bim such a place when be was first put at work and its duty to exercise reasonable care to maintain tbe safety of this place during tbe time be continued to occupy it in tbe course of bis service. “A reasonably safe working place having been furnished tbe servant, tbe absolute duty in that regard is satisfied. Then becomes active the secondary duty to exercise ordinary [345] care to preserve for tbe servant tbe reasonably safe condition of bis working place. In case of its becoming unsafe during tbe course of bis employment,. and tbe servant receiving an injury thereby before tbe master has knowledge of tbe existence of tbe danger or has reasonable opportunity to obtain such knowledge, and reasonable opportunity to remedy tbe danger, be is not liable.” Howard v. Beldenville L. Co. 129 Wis. 98, 108 N. W. 48. Applying these principles to tbe case before us, the first inquiry is: Was tbe working place furnished plaintiff by tbe defendant a reasonably safe one when be went to work on tbe morning of tbe Monday on which be was injured % Upon this subject we have tbe positive testimony of tbe carpenter that be examined tbe floors on Saturday and found them in good repair, that of tbe caster who'swept and cleaned floor No. 3 and observed that it was in good condition, and that of another caster tbat be cleaned tbe floor adjoining tbe one complained of at 9 o’clock tbat night and then passed over tbe one in question and observed tbat it was in tbe condition in which it bad been usually used. Other witnesses testified to tbe same effect. It also appears tbat tbe plaintiff bad been working on these floors, knew of what material they were made, bow tbe boards were placed over tbe asb pit, and tbat they lay loose on tbe iron framework. On tbe morning when he went to work be could see aud observe it and saw nothing tbat indicated a defect. Tbe only evidence relied on to warrant an inference tbat tbe floor was not safe when plaintiff went to work on Monday morning is plaintiff’s statement tbat lie beard tbe sound of a breaking board when be fell, and tbat of another witness who states tbat, when be looked at tbe place immediately after tbe plaintiff fell, be saw tbat one board was tipped. Tbe plaintiff’s statement tbat be beard tbe noise of a breaking board cannot be held to show tbat tbe board was defective and broke, because tbe direct testimony of all who saw tbe board thereafter is tbat they .found tbat it was not broken and tbat it was in its place. This evidence, therefore, is too vague, uncertain, and speculative to permit of an infer [346] ence that the place, was not safe, as to- the strength of the boards, when the plaintiff went to work in the morning. The statement that the board was tipped is not evidence that it was defective, for it appears that all of the boards over the ash pit were loose and could be turned up. There is no claim that the manner in which this floor was constructed constituted a defect, and, as was shown, it was constructed in that way to enable defendant to empty the ash pits underneath. The evidence therefore established that the defendant furnished the plaintiff a reasonably safe place when he started work on Monday morning. The inquiry then arises: Did defendant exercise reasonable care to preserve plaintiff’s working place in a reasonably safe condition during the time he worked on the floor on Monday morning before he was injured ? It is urged that, if the place was safe when the plaintiff began working Monday morning, the evidence tends to show that it became dangerous during the time it was being used that morning in prosecuting defendant’s business, and that the defendant was negligent in not ascertaining its dangerous condition and in not repairing it before the injury. The trial court held that there was no evidence tending to show defendant negligent in this respect, and we find no evidential facts tending to support this contention. The defendant’s representatives, charged with making repair of any defects which might arise during the working hours, were not informed or notified before the accident happened, by the casters or plaintiff, of any defects in this floor which, it is claimed, had arisen during the progress of the work during the morning. Nor is there evidence that they carelessly omitted to observe such defects or to give them proper attention during this period. Under such circumstances defendant’s conduct is free from the charge of having negligently omitted performance of the duty to maintain a safe working place for the plaintiff. It is asserted with confidence that the court erred in hold [347] ing that if the place became unsafe through defendant’s negligence while the plaintiff was at work, then he is precluded from recovery because the defect was. one obviously within his view and observation and he assumed the risks incident thereto. It seems clear that if, after plaintiff began work, the boards were burned or became displaced on the iron framework so as to render the place defective and dangerous, then this state of things would be as readily observed by the-plaintiff as by any other person engaged in the service. • The-place was within his constant view and had been used by him. continuously. As stated by the trial court in passing opinion on this point: “x\n employee cannot . . . close his eyes and senses to' dangers that are obvious or which, in the exercise of ordinary care, are discoverable, and then, when injured, claim immunity from responsibility.” It is manifest that if a defect such as is complained of existed, it was as readily discoverable by the plaintiff as by any other person in defendant’s employ. Under these conditions the plaintiff must be held to have assumed the risk of injury and he cannot recover against the defendant. Relyea v. Tomahawk P. & P. Co. 110 Wis. 307, 85 N. W. 960; Grams v. C. Reiss C. Co. 125 Wis. 1, 102 N. W. 586; Stork v. Charles-Stolper C. Co. 127 Wis. 318, 106 N. W. 841; Rahles v. J. Thompson & Sons Mfg. Co. 137 Wis. 506, 118 N. W. 350. The court properly awarded judgment dismissing the complaint. By the Court. — Judgment affirmed.