Koutsky v. Forster-Whitman Lumber Co.

WiNsnow, C. J. While the complaint in this action does not mention sec. 1636/, Stats. (1898), it is very clear that it. is based upon the alleged failure by defendant to comply with the requirements of that statute and the case was submitted to the jury upon this basis. The important claims of error relate to the application of this statute to the case, and the manner of the submission of the questions under it to the jury. As will be seen by reference to the statement of facts, the trial judge covered the vital issues in' the case by four simple questions, asking (1) whether the plaintiff was injured in the mannner he claimed; (2) whether the defendant negligently failed to securely guard or fence the gearing in which the plaintiff was caught; (3) whether such negligence, if found, was the proximate cause of the injury; and (4) .whether want of ordinary care on plaintiff’s part contributed to produce his injuries. The first and most serious contention made by the appel [430] lant is in substance this: 'that see. 1636/, Stats. (1898), which requires all gearing, which is so located as to be dangerous to ■employees in the discharge of their duty, to be securely guarded or fenced, only applies to a case where the evidence shows that the unguarded gearing was dangerous to an employee working in the position in which the plaintiff was at •the time of his injury. Stated in another way, the contention is that the statutory ■duty to guard can only be invoked by an employee who at the moment of the accident is performing a duty which neces■sarily or ordinarily brings him into dangerous proximity to the unguarded gearing. Applying the contention to the con- ■ crete case before us, it is in substance that the gearing in question was plainly not dangerous to a man engaged in straightening slabs on the slasher slide, because it was under the boards on which he was standing, and hence, though the unprotected gearing might possibly be dangerous to a man cleaning up the floor under it, still, as the plaintiff was not so engaged at the •time of his injury, the statute has no application to the case. Walker v. Simmons Mfg. Co. 131 Wis. 542, 111 N. W. 694, and Powalske v. Cream City B. Co. 110 Wis. 461, 86 N. W. 153, are cited as sustaining this contention. We regard this as too narrow a view of the statute. As first enacted (ch. 549, Laws of 1887) this statute required that gearing be guarded only when so located as to be dangerous to employees “when engaged in their ordinary duties.” These last words were dropped out in the revision of 1898, and the words “in the discharge of their duty” inserted. This change very satisfactorily indicates the legislative intent to broaden the scope of the statute and cover by its terms any ■employee who may at any time, either in the course of his ordinary duties or.in the course of occasional or exceptional duties, come within the danger zone. There was evidence in the present case to the effect that the plaintiff at times was required to step down into the alley be [431] ■tween tbe live rollers and tbe edger table (in other words, into the place where be fell), and clean tip tbe debris which accumulated there. In so doing he would necessarily come into very close proximity with the gearing in question, and it was certainly fairly a question for the jury whether the gearing, if unprotected at the side, was not so located as to be dangerous ■to him in the discharge of this occasional duty. If it was, then the command of the statute to securely fence or guard the gearing applied as between the plaintiff "and the defendant, notwithstanding the fact that his usual duties would not ■ordinarily bring him into dangerous proximity to the gearing. So we think that the second question of the verdict is not to be condemned because it does not limit the inquiry to the question whether there was negligence' as .to a person who was engaged in doing the very duty which the plaintiff was doing at the time of the accident. If in the performance of any of his ■duties, ordinary or exceptional, he was brought into dangerous proximity to the gearing, the statute stepped in and required the employer to fence or guard the gearing. The court instructed the jury with regard to this question as follows: “This question is to be answered from'the whole evidence, in view of the legal requirement of. the owner or manager of ■every place where persons are employed to perform labor, and which place has or contains as a part of its equipment belting, ■shafting, gearing, or other machinery particularly mentioned, which is so located as to be dangerous to employees in the discharge of their duties, that the same be securely guarded or ■fenced. You will determine from the whole evidence whether ■or not the gearing here under consideration was so located as io be dangerous to persons employed” in defendant’s mill as ■was the plaintiff; and if it was so dangerously located, then whether or not it was, at the time of the accident and before, securely guarded or fenced so as reasonably to protect such employees, while engaged as such, against danger of injury therefrom; and if not so securely guarded or fenced, then whether the defendant was negligent in failing to securely .guard or fence the same.” [432] It seems to us quite certain tbat this instruction properly tells the jury that the duty to guard applies only in case they find the location of the gearing to be dangerous to persons employed to perform such duties as the plaintiff was employed to perform. It would doubtless hare been better to have put two questions to the jury on the subject: (1) whether the gearing was so located as to be dangerous to the plaintiff in the discharge of his duties if left uncovered, and (2) if so,, whether it was'in fact securely covered; but we deem the question as put by the court, together with the instruction, as-covering the inquiry without prejudicial error. We do not regard either the Walker or the Powalslce Gase before cited as holding any doctrine contrary to that here decided. But even if it be found without error that the defendant neglected a statutory duty owing by it to the plaintiff by failing to securely guard the gearing, the question whether such neglect was the proximate cause of the plaintiff’s injury still remains to be answered, and there can be no recovery by the plaintiff unless this can be answered affirmatively from the evidence. The jury did so answer this question, and the contention is that there was no evidence on which that answer can be based. This is undeniably a close and difficult question,, but we have concluded that we cannot say that there was no evidence to support this answer. There must be, of course, the element of reasonable anticipation on the part of the employer, not anticipation of the particular injury to the particular person in fact injured, but reasonable anticipation of an injury of some kind resulting by reason of the unprotected gearing to an employee performing duties similar to the plaintiff’s duties at the time of the accident. Meyer v. Milwaukee E. R. & L. Co. 116 Wis. 336, 93 N. W. 6. The accidental and non-negligent slip or fall, resulting from the edging-coming along the live rollers crosswise and hitting the plaintiff’s foot, is not properly an element in the chain of causation. [433] It is simply a condition or circumstance to be expected in tbe natural order of things as liable to occur at any time. Under the circumstances shown here, it was certainly a fact which any employer ought reasonably to anticipate that an employee standing on the narrow board walk on the edge of the alley, busily engaged in straightening moving slabs and edgings with his pike pole, might lose his footing, or make a misstep, or be hit by a slab, and thus fall into the alleyway next to the gears. It seems equally.plain that an employer must anticipate that in case of such fall the employee would inevitably throw out his arms and grasp at anything to save himself. If the employer ought to anticipate such occurrences, is it not within the power of the jury to say that he. ought to anticipate also that, in the course of the involuntary attempt which every person makes to save himself under such circumstances, the falling person is likely to thrust his hand into unprotected gearing situated where this gearing was ? . Wé think this question must be answered in the affirmative. In principle the case is much like the cases of Yess v. Chicago B. Co. 124 Wis. 406, 102 N. W. 932, and Winchel v. Goodyear, 126 Wis. 271, 105 N. W. 824. A considerable number of detail errors are alleged, and some of them are argued in the brief. We have examined them and find no ruling which would justify reversal of the judgment, even should it be held erroneous, and we do not deem it necessary to discuss them at length. The important propositions in the case have been treated and no reversible error found. By the Court. — Judgment affirmed. MARSHALL, J., dissents.