Rosholt v. Worden-Allen Co.

BaeNes, J. The appellant makes the following points: (1) It was error to submit to the jury the first and fifth questions' of the special verdict. (2) The answers to the second and third questions are inconsistent and contradictory and both cannot be true. (3) There was no negligence on the part of the defendant. (4) It should be held as a matter of law that the plaintiff was guilty of contributory negligence. (5) The court erred in charging the jury. 1. In reference to the first' point made, it is urged that it was no part of the plaintiff’s duty to do the work which he was engaged in at the time he was hurt, because there was another person employed to carry the boards to the carpen — 172 — ters, and plaintiff’s duty was confined to putting tbe boards in place on tbe roof after they were brought to him. Tbe helper was either unable or unwilling to carry the number of boards needed, and the plaintiff was obliged to either help himself or sit" down and do nothing. He was not specifically forbidden to carry-boards, and by doing so he was facilitating the work of his employer. It is more than probable that he would have been censured by the foreman in charge of the work had he been found idle because the helper was not carrying the necessary number of boards. It was, we think, under the circumstances, clearly within the province of the jury to say that plaintiff was engaged in the line of his duty when he was injured. Indeed, we think it would be quite difficult to say that his contract' of employment did not contemplate that' he should do the very thing which he did do when the occasion for it arose. 2. It may well be that there was no room for the jury in this case to find that the defendant in the exercise of ordinary care ought to have known that the runway was not safe, and at the same time to find that the plaintiff in the exercise of such care ought not to have known that the runway was unsafe. If, however, the third question in the special verdict was immaterial, as we think it was, then the inconsistency between the answer to it and the answer to the preceding question was immaterial. 3. This brings us to a consideration of the most important question in the casé, and that is whether or not the evidence was sufficient to warrant the jury in finding any negligence or failure of duty on the part of the defendant which would warrant a recovery in this case. It' is clear that a ease of common-law liability was not made by the plaintiff, for two reasons: First. The common-law rule required the master to furnish only a “reasonably safe” place in which to work. Howard v. Beldenville L. Co. 129 Wis. 98, 114, 108 N. W. 48. Considering the subs.tan173 tial character of the runway and the nature of the work that was being carried on, a court or jury would not be warranted in saying that the place was not “reasonably” safe. Second. The rule requiring that the place of employment be reasonably safe was not’ even applicable to building operations where conditions were continually changing and where dangers arose from the acts of the servants themselves in carrying on such operations. Strehlau v. Jolin Schroeder L. Co. 142 Wis. 215, 217, 125 N. W. 429, and cases cited; Jakopac v. Newport M. Co. 153 Wis. 176, 180, 140 N. W. 1060. So, if any liability exists, it must exist by virtue of ch. 485, Laws of 1911 (secs. 2394 — 41 to 2394 — 71, Stats. 1911), or by virtue of some other statute of this state. Said ch. 485 is applicable beyond any doubt to all employees and all employers in this state, excepting only such as are expressly exempted from' its operation. Sec. 2394 — 48 requires every employer, among other things, to furnish a place of employment “which shall he safe for employees.” Sec. 2394 — 49 provides' that no employer “shall require, permit or suffer any employee to go or be in any employment or place of eniployment which is not safe.” Sec. 2394 — 41, srib. 11, provides that “The term ‘safe’ and ‘safety’ as applied to an employment or a place of employment shall mean such freedom from danger to the life, health or safety of employees ... . as the nature of the employment will reasonably permit.” Sec. .2394 — 41, sub. 4, provides that “The term ‘employee’ shall'mean and include every person who may be required or directed by any employer, in consideration of direct or indirect gain or profit, to engage in any employment, or to go or work or be at any time in any place of employment.” Sec. 2394 — 41, sub. 3, defines the term “employer” to “mean and include every person, firm, corporation, agent, — 174 — manager, representative or other person having control or custody of any employment, place of employment or of any employee.” Sec. 2394 — 41, sub. 1, provides: “The phrase ‘place of employment’ shall mean and include every place, whether indoors or out or underground and the premises appurtenant thereto where either temporary [temporarily] or permanently any industry, trade or business is carried on, or where any process or operation, directly or indirectly related to any industry, trade or business, is carried on, and where any person is directly or indirectly employed by another for direct or indirect gain or profit, but shall not include any place where persons are employed in private domestic service or agricultural pursuits which do not involve the use of mechanical power.” It is obvious that these provisions make some radical changes in the common law as it existed when the act was passed, and that among those changes is the abrogation of the rule referred to as having been laid down in Strehlau v. John Schroeder L. Co. 142 Wis. 215, 125 N. W. 429, and kindred cases. It is also apparent that the employer no longer ful-fils his duty by furnishing a “reasonably” safe place. Instead, he must furnish one which is as free from danger as “the; nature of the employment will reasonably permit.” This undoubtedly refers to the physical situation. There may be places of employment which from their very nature cannot be made safe. There may be other places which cannot be made safe without seriously interfering with the carrying on of the work. As to such places, the master is required to make them only as free from danger as the nature of the employment will reasonably permit. Where the nature of the employment is such that it will reasonably permit a place to be made safe, then it must be made so regardless of the character of the employment, unless it falls within one of the classes exempted from the operation of the act. And it — 175 — might be here remarked that the employers who are exempt from the operation of ch. 485, Laws of 1911, are not as numerous as are those who are exempted from the operation of sub. 2 of sec. 2394 — 1, being part' of the Workmen’s Compensation Act as originally passed or as amended by ch. 599, Laws of 1913. Under the original act and the amendment thereto, any employer of less than four employees can avail himself of the defenses of contributory negligence and negligence of a fellow-servant', while all employers under ch. 485, Laws of 1911, must furnish the safe place of1 employment therein provided for, except where the employee is engaged in private domestic service or agricultural pursuits not involving the use of mechanical power. The language of the sections of the statute quoted is plain and hardly open to judicial construction. If the statute is drastic there is no reason for thinking that it was not intentionally made so. There is not much doubt that the “Compensation Act” referred to would have been made compulsory ins'tead of optional, were it not that the legislature either thought that a compulsory act would be unconstitutional or else entertained such grave doubts upon the subject that it was considered inadvisable to experiment with a compulsory law. It is evident that the legislature desired that employers generally should come under the act, and that some of its provisions were designed to make it' as comfortable for them ■to come in as to stay out. Ch. 485, Laws of 1911, was intended to supplement ch. 50 of the laws of the same year. The statute in terms imposes an absolute duty upon the employer to make the place of employment as free from danger as the nature of the employment will reasonably permit, and in the absence of contributory negligence the liability of the master follows as a matter of course if this duty is not performed and injury results to the employee because it is not performed. Such we think is the meaning of the law and the effect of the decision in Sparrow v. Menasha P. Co. — 176 — 154 Wis. 459, 143 N. W. 317. Tbe wording of tbe statute does not differ materially from tbe wording of tbe railroad fencing statute (sec. 1810), under wliicb it has been beld tli at tbe duty to construct a .sufficient fence witbin tbe meaning of tbe statute is absolute. Curry v. C. & N. W. R. Co. 43 Wis. 665, 674, and cases cited; Ulicke v. C. & N. W. R. Co. 152 Wis. 236, 139 N. W. 189. Tbe duty imposed by the statute we are considering is as imperative as is tbe duty imposed by sec. 1636 — 81 (tbe scaffolding statute), in reference to which it was said in Koepp v. Nat. E. & S. Co. 151 Wis. 302, 313, 139 N. W. 179, “that' tbe legislature intended to make employers, in tbe situations dealt with by tbe statute, absolute insurers of tbe safety of their employees save in cases of efficient assumption of tbe risk or contributory negligence ;” and we think tbe duty imposed is as mandatory and as absolute as that' imposed by ch. 396, Laws of 1911, which now appears as part of sec. 163Qjj, and which was undoubtedly passed to change tbe rule of West v. Bayfield M. Co. 144 Wis. 106, 128 N. W. 992, and tbe prior cases on which tbe •decision in tbe West Case was based. Following tbe decision in the Koepp Case, it was again said in reference to sec. 1636 — 81 that it “in terms imposes on tbe defendant the absolute duty to furnish safe, suitable and proper apparatus for raising this stack.” Bruce v. Northern B. & S. I. Works, 152 Wis. 188, 191, 139 N. W. 729. Tbe Koepp Case was again followed and approved in Kosidowski v. Milwaukee, 152 Wis. 223, 139 N. W. 187. Again in tbe opinion on rehearing in Van Dinter v. Worden-Allen Co. 153 Wis. 533, 543, 138 N. W. 1016, 142 N. W. 122, it was said: “It was held in tbe Koepp Case that tbe legislature intended to make employers absolutely liable as to tbe safety of employees in tbe situation embraced in tbe statute (sec. 1636 — 81), except where tbe injured person assumed tbe risk or was guilty of contributory negligence.” The word “absolute” as used in these decisions must mean — 177 — “without limitation,” unless limitation is expressly made. The intent of the legislature to mhke a radical change in the common law and to adopt a rule of absolute liability is certainly as manifest in secs. 2394 — 48, 2394 — 49, and 2394— 41 as it is in sec. 1636 — 81. So in actions brought to recover damages for a personal injury under the 1911 statute, where the relation'of master and servant exists, and where 'it is charged that' there was a failure of duty to furnish a safe place for the servant to work, and where the plaintiff does not' belong to the classes of employees who are exempted,' the inquiry is: Was the place as free from danger to the life, health, or safety of the employee as the nature of the employment would reasonably permit? If there is evidence which will warrant a jury in returning a negative answer, a cause of action is established if the servant was injured and the injury was due to the master’s failure to comply with the statute and there was no contributory negligence. This latter defense was available under ch. 50 of the Laws of 1911, but was taken away by ch. 599, Laws of 1913, as to actions arising after such act became effective, where four or more employees are engaged in a common employment. We think it' must be said in the instant case that the jury might well find that the place of employment was not as free from danger as the nature of the employment would reasonably permit. The laying of two or three tiers of planks instead of one would in all probability have prevented the accident. It is almost a certainty that the nailing down of the tier that was laid would have prevented it. So would the erection of a substantial guard rail immediately outside of the joists or purlines on which the planks rested. It may well be that there were other' things which might have been done to make the place safe which the nature of the work would reasonably permit, but the enumeration given is sufficient. A jury would be well within its rights in saying — 178 — that tbe nature of the work would reasonably permit either of the first two things mentioned to be done, and probably the third. The jury has found that' the place was not “safe” within the meaning ofi the statutory definition of the word, and we think the evidence was ample to warrant such a finding. This being so, the,answer to the third question in the verdict became immaterial. The verdict finding, as it did on sufficient evidence, that the place of employment was not as free from danger as the nature of the employment would reasonably permit, and that the plaintiff was injured because it was not made so, and that plaintiff was not guilty of contributory negligence, every fact essential to a recovery under the statute was found. 4. The defense of assumption of hazard was abolished by sub. 1 of sec. 2394 — -1 as to all employees. Were it still a defense, it might and probably would defeat recovery on the part of the plaintiff. But leaving out of consideration assumption of hazard, we think there is little evidence in the record which would warrant the jury in finding that the plaintiff was guilty of contributory negligence. Certainly the jury might find on the evidence, as it did, that there was no contributory negligence on his part. 5. The appellant attacks an instruction given by the court, but under the law as laid down in this opinion the instruction complained of could do the appellant no harm whether it was right or wrong. By the Court. — Judgment affirmed.