Corrigan v. New Dells Lumber Co.

BaeNES, J. It is the contention of the appellant that it is a jury question whether the defendant was negligent in failing to promulgate a rule requiring the men working on the car to warn the other two employees before rolling the logs off a car that they were about to do so. this is the sole question raised by the appeal. In support of the claim that the case should have been submitted to the jury the following cases are cited: Slam v. Lake Superior T. & T. R. Co. 152 Wis. 426, 140 N. W. 30; McHolm v. Philadelphia & R. C. & I. Co. 147 Wis. 381, 132 N. W. 585; Gierczak v. Northwestern F. Co. 142 Wis. 207, 125 N. W. 436; Polaski v. Pittsburgh C. D. Co. 134 Wis. 259, 114 N. W. 437; Bain v. N. P. R. Co. 120 Wis. 412, 98 N. W. 241; Portance v. Lehigh Valley C. Co. 101 Wis. 574, 77 N. W. 875; Promer v. M., L. S. & W. R. Co. 90 Wis. 215, 63 N. W. 90. The trial court held otherwise, basing its conclusion on Polaski v. Pittsburgh C. D. Co., supra; Pern v. Wussow, [589] 144 Wis. 489, 129 N. W. 622, and other cases of like tenor. In the latter ease tbe plaintiff was one of a crew employed in' removing an embankment of earth. He was working at its base while others worked at the top cracking the frozen earth. Occasionally the steam shovel would loosen up frozen pieces which it would not take away and they would roll down the embankment, and sometimes frozen pieces would fall from the shovel. Warnings were customarily given, but no rule had been promulgated requiring that they should be. The plaintiff was injured by frozen earth sliding down the embankment and striking him. No warning was given, and the negligence relied on was failure to promulgate a rule ' requiring that a warning should be given. After referring to the rule established in Polaski v. Pittsburgh C. D. Co., supra, and other cases, which made it the duty of the master to promulgate rules requiring warning where servants were engaged in different departments and the operation of one department was likely to create peril to servants engaged in another, the court said: “Here there were but few employees, all working, substantially, together. The activities of the entire crew were confined within quite a narrow compass. All were in sight and hearing of each othér, with only a few steps from one extreme to the other of the operations. There was but one crew, and quite a small one, working at the single- task of transferring the bank of earth to wagons, appellant being a handyman on the lower level, part of his work being to shovel .the pieces of frozen earth and stones, which the shovel did not take, into the wagons. . . . Plaintiff seems to have been injured because of a danger with which he was perfectly familiar and which he voluntarily subjected himself to, a peril incident to constantly changing conditions created by him and his associates, which all appreciated and understood they were expected to avoid by individual vigilance. The law applicable thereto is plain, as many times illustrated in decisions. The rule that the master must furnish his servant a reasonably safe place to work and use ordinary [590] care to keep it constantly so, does not apply. Larsson v. McClure, 95 Wis. 533, 539, 70 N. W. 662; Osborne v. Lehigh Valley C. Co. 97 Wis. 27, 71 N. W. 814; Mielke v. C. & N. W. R. Co. 103 Wis. 1, 79 N. W. 22; Nix v. C. Reiss C. Co. 114 Wis. 493, 504, 90 N. W. 437.” In the present case there was a crew of four men engaged in a common task within plain sight and hearing of each other and doing a kind of work in which conditions were constantly changing, and we are unable to see why the rule of the Pern Case should not apply and why it is not decisive of this case if followed. In some respects at least the case of the plaintiff in this action is weaker than was the case made by Pern. It was not always possible for him to see what was going on around him or to guard himself from injury by looking. Here the plaintiff could do so, and he knew that two of the men who were working with him went back to the car for the purpose of breaking down the logs which remained on the car, one of which caused his injury. With the possible exception of Gierczak v. Northwestern F. Co. 142 Wis. 207, 125 N. W. 436, all of the cases cited by appellant and which tend to support his contention were cases where servants engaged in performing one particular kind of work were injured by the negligence of servants in another crew doing a different kind of work. We think the GierczaJc Case, when read in the light of the facts which were established, falls fairly within the rule laid down in Polaski v. Pittsburgh C. D. Co. 134 Wis. 259, 114 N. W. 437. We conclude that the circuit judge was correct in holding that the case presently under consideration fell within the principles laid down in Pern v. Wussow, 144 Wis. 489, 129 N. W. 622, and cases there cited, as well as the case of Strehlau v. John Schroeder L. Co. 142 Wis. 215, 125 N. W. 429. It appeared in the instant case that the servants had themselves usually if not almost invariably adopted the practice of giving warning when logs were to be rolled off a car. [591] It appeared from the evidence, without dispute, that such warning had been given more than one hundred times daily during the three or four days plaintiff had been at work, without failure or omission, until the time of the injury. Whether under the decision in Richter v. Union L. Co. 153 Wis. 261, 140 N. W. 1126, the failure to promulgate a rule could be said to be the proximate cause of the injury, or whether it is negligence not to promulgate a rule where servants customarily do the things which the observance of a rule would require, we do not find it necessary to decide. By the Court. — Judgment affirmed. Timlih, J., dissents.