Lind v. Uniform Stave & Package Co.

Tbe following opinion was filed April 20, 1909: BabNes, J. This appeal involves the following questions: (1) Was tbe defendant negligent? (2) Was decedent guilty [187] of contributory negligence? (3) Was it error to permit the plaintiff to show that the openings in the top of the vat were guarded after the accident ? (4) Did the court err in charging the jury that the burden of proof was upon the defendant to establish the defense of contributory negligence ? 1. The only ground of negligence on the part of the defendant that it is claimed existed was its failure to surround the open spaces, left in the top of the vat by the raising of the trap doors therein, with suitable barriers or safeguards for the protection of its employees, as required by sec. 1636/, Stats. (1898). There can be little doubt that the open unguarded trap door created a situation of danger for employees working around the opening, and it was a question, for the jury to determine on the evidence whether such openings could be guarded without unreasonably interfering with' the work that was being carried on, and which could not be performed with the doors closed. Van de Bogart v. Marinette & M. P. Co. 132 Wis. 367, 112 N. W. 443; Kreider v. Wis. River P. & P. Co. 110 Wis. 645, 657, 86 N. W. 662. In the latter case it is said that most of the cases arising under sec. 1636/, where there is a failure to guard, leave the question of breach of duty on the part of the employer to the jury, unless there is no room for conflicting inferences. This court cannot hold as a matter of law that there was not sufficient evidence of negligence on the part of the defendant to' carry the case to the jury. The jury having found that the-defendant was negligent in failing to provide guards as required by the statute referred to, the question of assumption of hazard by the deceased is not in the case, although other phases of contributory negligence might be shown and might constitute a defense. Klotz v. Power & M. M. Co. 136 Wis. 107, 116 N. W. 770. 2. The deceased had been employed on top of this vat for-six months and had passed by and a short distance from the open trap door forty or flfty times within the hour immediately preceding the accident, so that he was thoroughly [188] familiar witb bis surroundings and witb tbe fact tbat tbe trap door was open and witb the danger to be apprehended therefrom. Tbe question as to whether tbe deceased should not be held to have been guilty of contributory negligence as a matter of law is extremely close, and is therefore one on which considerable reliance must be placed upon the decision of the trial court who heard the testimony. Powell v. Ashland I. & S. Co. 98 Wis. 35, 73 N. W. 513; Bohn v. Racine, 119 Wis. 341, 343, 96 N. W. 813; Nicoud v. Wagner, 106 Wis. 67, 72, 81 N. W. 999; Collins v. Janesville, 117 Wis. 415, 423, 94 N. W. 309. This court is of the opinion that there was evidence from which the jury might infer that the steam was so dense that the deceased became confused or partially lost his way in making his return trip, and walked into the opening without being able to see it because of the steam, or that, because of his inability to see, he deviated from his regular course of travel, believing, however, that he was pursuing i-t, and that it should not be here held as a matter of law that the deceased failed to exercise ordinary care. The writer of this opinion does not concur in this view, and thinks that the court should have directed a verdict for the defendant because decedent’s negligence was conclusively established. 3. The plaintiff, before resting her case, was permitted to show that after the accident the defendant placed guards around the opening caused by the opening of the trap doors. As proof tending to show negligence this evidence was incompetent and its receipt would be reversible error. Castello v. Landwehr, 28 Wis. 522; Lang v. Sanger, 76 Wis. 71, 44 N. W. 1095; Anderson v. C., St. P., M. & O. R. Co. 87 Wis. 195, 58 N. W. 79; Kreider v. Wis. River P. & P. Co. 110 Wis. 645, 86 N. W. 662; Odegard v. North Wis. L. Co. 130 Wis. 659, 110 N. W. 809. A jury would very naturally construe the action of the defendant in placing guards in position after the accident as an admission on its part that the dangerous place was not properly or sufficiently [189] guarded before. Sucb an inference might be altogether wrong, because, as is said in the cases cited, if snob an inference were permissible, “the fact that a person at a certain time commences using and exercising extraordinary care in a given case may be used against him to prove that before such time he had failed to use reasonable and ordinary care." Castello v. Landwehr, supra; Lang v. Sanger, supra; Anderson v. C., St. P., M. & O. R. Co., supra. Proof that an alleged danger was guarded against after an accident happened might well be considered by the jury as convincing-evidence of existing negligence before the repair was made. The accuracy of this rule is not questioned by the respondent, but it is argued that it is not applicable here because the evidence was offered, not to show negligence, but to show that it was feasible to place a guard around the opening. In Redepenning v. Rock, 136 Wis. 312, 117 N. W. 805, this court held that evidence of subsequent repair to a highway might be offered to rebut the contention of the defendant town that the notice of injury served was so indefinite as to the location of the defect complained of that the town was misled by it. We entertain no doubt that, if the defendant had offered proof to show that it was not practicable to guard the open space in the vat, such evidence might be rebutted by showing that defendant had in fact guarded it. The evidence offered tended to show that the opening into which decedent fell might have been guarded. This fact might just as well have been proved by other evidence, and the real question is, Should the plaintiff have been permitted to offer the evidence as part of her proof before resting her case, it being admittedly incompetent for some purposes? Under the decisions in Grundy v. Janesville, 84 Wis. 574, 578, 54 N. W. 1085, and Baltimore & P. R. Co. v. Cumberland, 176 U. S. 232, 236, we shall have to hold that the evidence offered was competent, the purpose of the offer being restricted. In the Grundy Case, as here, the objectionable evidence was introduced as part of plaintiff’s case in chief, as an examination [190] •of the printed case shows. Had defendant requested the court to charge the jury that such evidence was no proof of negligence on its part, it would have been error to refuse to so charge. No request having been made, it was not error for the court to omit the giving of any instruction on the subject McCoy v. Milwaukee St. R. Co. 88 Wis. 56, 59 N. W. 453. 4. Contributory negligence was an affirmative defense, and there was no error in charging the jury that the burden of proof was on the defendant to establish it by a preponderance of the evidence. Gill v. Homrighausen, 79 Wis. 634, 48 N. W. 862; Hoye v. C. & N. W. R. Co. 67 Wis. 1, 29 N. W. 646; Kelly v. C. & N. W. R. Co. 60 Wis. 480, 19 N. W. 521; Randall v. N. W. Tel. Co. 54 Wis. 140, 11 N. W. 419. It is immaterial whether the evidence establishing such negligence is given by the witnesses for the plaintiff or the defendant. The case of Achtenhagen v. Watertown, 18 Wis. 331, relied on by appellant as establishing .a different rule, simply holds that where the evidence offered in plaintiff’s behalf raises an inference of contributory negligence he cannot recover unless he establishes a prima facie •case showing that he was not negligent. We think there was no error committed in refusing to admit evidence showing that the decedent had been intoxicated on former "occasions. The evidence tending to show that he was under the influence of stimulants on the morning of the r accident is very shadowy. By the Court. — Judgment affirmed.