Bruce v. Northern Boiler & Structural Iron Works

Siebeceer, J. Tbe judgment of tbe lower court was awarded on tbe grounds tbat, under tbe facts and circumstances shown, tbe action is controlled by tbe common-law rules governing tbe relation of master and servant, and tbat tbe case is ruled by tbe principles applied in tbe case of Van den Heuvel v. Nat. F. Co. 84 Wis. 636, 54 N. W. 1016. Tbe court held tbat tbe master bad furnished suitable and safe appliances and material for tbe construction of tbe hoist, and tbat tbe plaintiff, as foreman of tbe crew to perform tbe work, bad failed to properly inspect them for ascertaining tbeir fitness and safety and was therefore precluded from recovering damages for tbe injuries alleged to have been caused by tbe defective rope. Tbe case was determined without reference to tbe liabilities created by sec. 1636 — 81, Stats., which provides: “A person employing or directing another to perform labor of any kind in the erection, repairing, altering or painting of a bouse, building or structure shall not furnish or erect, or [191] cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders or other mechanical contrivances, which are unsafe, unsuitable or improper, and which are not so constructed, placed and operated as to give proper protection, to the life and limb of a person so employed or engaged.” The inquiry is: Do the provisions of this statute apply to this case, and, if so, did the court properly nonsuit the plaintiff? This statute embraces persons employed or directed to perform labor of any kind in the repairing or altering of any building or structure. In this case plaintiff was engaged by the defendant to perform labor in repairing or altering the smokestack on one of defendant’s buildings wherein it carried on its business of manufacturing boilers and stacks. As above stated, the mechanical contrivance furnished to raise the smokestack was one composed of a gin pole, guy ropes, and a tackle of ropes and pulleys, which formed a lifting apparatus for raising heavy weights, and in its entirety constituted a hoist. The case presents a situation showing that the plaintiff was engaged by the defendant to perform labor in repairing or altering one of defendant’s buildings or structures, and that the defendant caused the parts of a hoist, consisting of ropes, a gin pole, and a tackle, to be furnished to accomplish this work. It seems clear from the facts and circumstances of the case that the plaintiff and the defendant in carrying out this undertaking acted within this statute and that their rights and liabilities are governed thereby. The statute in terms imposes on the defendant the absolute duty to furnish safe, suitable, and proper apparatus for raising this stack. It was considered in the recent case of Koepp v. Nat. E. & S. Co. 151 Wis. 302, 139 N. W. 179, and it was there held that if an employer personally furnished, or through another caused to be furnished, any of the prohibited articles for the purposes specified in the statute, he was liable to the employee for the damages proximately 'resulting [192] therefrom to such employee, unless it appeared that the employee assumed the risk or was guilty of contributory negligence. There is no question that the evidence adduced tends to show that the guy rope which broke was not suitable and safe to afford proper protection to the life and limb of the plaintiff. Do the facts and circumstances show, as matter of law, that the plaintiff assumed the hazard and risk of this alleged defective rope ? The evidence admits of the inference that the defect in the rope was not so open and obvious that it could be observed by a person of plaintiff’s experience and knowledge by inspecting it with the eye. There is evidence warranting the inference that the safety and tensile strength of the rope could have been tested only by means not available to the plaintiff under the circumstances of his employment. If these inferences are resolved in plaintiff’s favor, then he did not assume the risk incident to the use of the rope, and the defendant is responsible for any failure to properly inspect and test it before furnishing it to the plaintiff for use as directed. We are persuaded that it cannot be said, as matter of law, upon the evidence now before us, that the plaintiff assumed the risk and hazard incident to the use of this rope in its unsuitable condition. Fonder v. General C. Co. 146 Wis. 1, 130 N. W. 884. It also follows from these considerations that the evidence does not establish, as matter of law, that the plaintiff was guilty of contributory negligence. The court improperly nonsuited the plaintiff. By the Court. — The judgment appealed from is reversed, and the cause remanded for a new trial.