Johanson v. Webster Manufacturing Co.

Dodge, J. The judgment is claimed to be supported by either of two phases of negligence found by the special verdict, namely, failure to promulgate regulations against possession of matches by employees in the painting room and failure to provide safe place to work. The first of these requires very little attention, because, whether negligent or not, there is not the slightest evidence of its efficacy in causing the injury. Even if it be conceded that a match was on the floor [184] and ignited, there is no evidence that any employee brought it or that such rule as contended for would have prevented it. The finding by answer 5 of the special verdict that this omission of rule was the proximate cause of injury could have been based only on mere conjecture or guess and therefore cannot stand. Spencer v. C., M. & St. P. R. Co. 105 Wis. 311, 313, 81 N. W. 407; Gagan v. Janesville, 106 Wis. 662, 665, 82 N. W. 558; Dapper v. Milwaukee, 107 Wis. 88, 92, 82 N. W. 725; Musbach v. Wis. C. Co. 108 Wis. 57, 69, 84 N. W. 36. ■ The remaining support for the judgment is, of course, merely negligence. The original place of labor is not claimed or shown to have been unsafe, but merely that it subsequently became unsafe by reason of the permitted presence of benzine. This could impose liability on the employer only in ease its conduct constituted negligence. Howard v. Beldenville L. Co. 129 Wis. 98, 108 N. W. 48. Negligence in law is not mere carelessness, but is careless conduct under such circumstances that an ordinarily prudent person would anticipate some injury to another as a reasonably probable result thereof. Comply v. C. H. Starke D. & D. Co. 129 Wis. 622, 625, 109 N. W. 650. Now„ if the act of permitting employees to scatter benzine promiscuously about the workroom is negligence as above defined, what can be said of the act of the employee who in fact scatters it? Is the latter act any less careless than the former or any less likely to cause injury within the anticipation of an ordinarily prudent person ? Surely not. But the evidence is undisputed that the presence of benzine at the place of ignition occurred by plaintiff’s own act, that she brought it in an open vessel from the storage barrel, and that she was responsible for scattering it about and onto the floor. In other words, that she voluntarily did the specific act which defendant at most merely tacitly permitted. No theory is conceivable upon which an affirmative answer to the fifth question and a [185] negative one to the seventh (contributory negligence) can stand together. But both are essential to charge defendant with liability. Defendant must have been negligent and plaintiff not, or she cannot recover. Further, plaintiff assumed all risks of her employment obvious to a person of ■ordinary prudence and intelligence. Dugal v. Chippewa Falls, 101 Wis. 533, 77 N. W. 878; Sladky v. Marinette L. Co. 107 Wis. 250, 261, 83 N. W. 514; Faber v. C. Reiss C. Co. 121 Wis. 551, 559, 102 N. W. 1019. True, this is subject to the exception that the master owes the duty to warn an employee of hidden dangers or those of which the latter may be supposed to be ignorant. This duty arises, however, only when the employer has some reason to believe that the ■employee is ignorant of the danger and needs to be warned. In ease of an adult of apparent usual intelligence the employer may assume that she has the knowledge common to the great mass of mankind unless informed to the contrary, •■and in such ease is not negligent in failing to specially instruct or warn. Dahlke v. Ill. S. Co. 100 Wis. 431, 76 N. W. 362; Sladky v. Marinette L. Co. 107 Wis. 250, 261, 83 N. W. 514. No fact is shown by the evidence to arouse this •duty in the instant case. Inflammability of benzine in presence of a spark or flame is matter of common knowledge, undoubtedly within the contemplation and anticipation of the mass of mankind and of the ordinarily prudent and intelligent person. Plaintiff was a woman of middle age, for at least seven years employed in mechanic arts, principally in the mixing and use of paints, and evincing ordinary intelli.•gence and capacity. True, as her counsel urges, she was of foreign birth and did not speak English much, but this fact did not suggest want of intelligence. Common sense is not peculiar to English-speaking people. We are convinced that,if the finding of defendant’s negligence in permitting the place to become and be unsafe is allowed to stand, the plaintiff must be deemed guilty of contributory negligence [186] as matter of law, and the answer to the seventh question should have been changed to the affirmative. The printed case is in very glaring defiance of Supreme Court Rule 6, requiring it to be merely an abridgment of what is necessary to present questions for decision. Counsel have attempted no abridgment of the evidence, but apparently have printed in full the reporter’s minutes, including not only questions and answers, with needless repetitions, but even the testimony as to the extent of plaintiff’s injuries, which is in no wise relevant to questions raised on the appeal. Counsel owe the duty of relieving this court from the burden of perusing immaterial matter to at least the extent suggested by this rule. Costs for printing a case thus failing to comply are forbidden by Supreme Court Rule 44. By the Court. — Judgment reversed, and cause remanded with directions to dismiss the action: no costs to be taxed for printing case.