Gorsegner v. Burnham

Dodge, J. There was evidence tending to establish that the chamber in which deceased was at work was a permanent structure prepared hy the master and in which employees were expécted to perform labor in no wise connected with either the construction, repair, or maintenance of the building, from which would result to the master the duty to make it reasonably safe for the performance of such labor. Ein [488] gartner v. Ill. S. Co. 94 Wis. 70, 68 N. W. 664; Lipsky v. C. Reiss C. Co. 136 Wis. 307, 117 N. W. 803. This duty in no wise ceased because of tbe fact that repairs were in progress. That, at most, would be one of the circumstances bearing on the question of what would constitute reasonable safety and on the measure of notice to an employee of the existence of some defects or perils. The duty persisted to make the place reasonably safe. We are convinced that the trial court might well have found evidence which would justify submission to the jury of the question whether the roof as it existed upon the morning when decedent was directed to do work under it was reasonably safe, in view of the evidence of an extensive crack therein and of the degree and manner of shoring up which existed. Indeed, one witness testified that if he had known of the crack he would not have considered the bracing of the roof sufficient for safety. There is no direct evidence that the deceased had any knowledge of these perils, and the conditions surrounding his work are left in so much of confusion that the trial court might well have hesitated to charge him as matter of law with such knowledge as to impute to him assumption of the risk. We do not ignore that modification of the master’s duty to provide a safe place in the case of workmen together engaged in gradually altering such place of work, as in the case of con struction or repair, illustrated in such cases as Kath v. Wis. Cent. R. Co. 121 Wis. 503, 99 N. W. 217; Walaszewski v. Schoknecht, 127 Wis. 376, 106 N. W. 1070; and Strehlau v. John Schroeder L. Co., ante, p. 215, 125 N. W. 429. But the evidence is by no means clear that the decedent’s employment had any connection whatever with either the demolition, the shoring up, or the re-erection of this arch; indeed it tends to show that the reconstruction was being performed by independent contractors with whom decedent had no connection, and that the particular portion of the work consisting in the tearing down of a part and shoring up of the other [489] part bad been done some days before without decedent’s participation therein. Another fact pressed on our notice by the appellant is that some one engaged in assisting the masons, who were building another part of the arch, caused the collapse by stepping on the weakened portion. But there was evidence that it was customary for employees to pass over these arches, from which would result the duty of the master to contemplate such acts in performing its duty to properly support such roof for the safety of those who might have occasion to work under it. Further than this, however, the rule is thoroughly well established that even negligence of a fellow-servant, when merely concurrent with and rendered effective by a defect in the place of work, makes the master liable. Winchel v. Goodyear, 126 Wis. 271, 105 N. W. 824; Howard v. Beldenville L. Co. 129 Wis. 98, 99, 108 N. W. 48; Herring v. E. I. Du Pont de Nemours P. Co. 139 Wis. 412, 121 N. W. 170. As a result of the examination of the entire record we are unable to say, with the certainty requisite to the reversal of a trial court’s decision upon evidence, that there was none to establish the defendant’s negligence and consequent liability, nor that either assumption of the risk or contributory negligence on the part of the deceased was establish od beyond controversy. Error is assigned upon allowance of an amendment of the complaint to allege that appellant and Charles T. Burnham were copartners and as such conducted the business in which decedent suffered his death. Just how the appellant was prejudiced by such ruling is not obvious, since his authority in conducting the business was not disputed, and he would be equally liable whether sued separately "or jointly with another. But we cannot authoritatively decide the question of error in one order when the appeal is from a different one not dependent on the former. An appeal from an order does not bring up for review other orders made in the same [490] action. Flanagan v. C. & N. W. R. Co. 45 Wis. 98; Breed v. Ketchum, 51 Wis. 164, 7 N. W. 550; Linden L. Co. v. Milwaukee E. R. & L. Co. 107 Wis. 493, 501, 83 N. W. 851. By the Court. — Order appealed from is affirmed.