Priebe v. Hirsch

ViNJE, J. It seems the trial court held the plaintiff could not recover because the deceased was guilty of contributory negligence by violating the shop rule against making any change in any appliance or machine without the consent of Mr. Hirsch, one of his employers, or Mr. Jordan, the foreman. In the view the court takes of the case it is not necessary to pass upon the correctness of such ruling. The evidence shows that the deceased had provided for him by his employer an emery wheel and brush safe and adequate for his work; that the employer did not contemplate or authorize 184 the use of an additional one; that, an additional one became necessary only by reason of Hintz volunteering to help the deceased. The employers did not know of such help being-rendered and had no knowledge that another emery wheel was assembled and used. Neither does the evidence show that it was necessary that' the deceased should be assisted in his work. We have, therefore, a situation where two employees, without the knowledge or consent of the employer, and without any necessity therefor so far as the duties of either are concerned, of their own motion proceed to assemble and use an appliance which proves to be dangerous and results in inflicting an injury upon one of them. Under such circumstances, is the employer liable on the ground that he has not performed his statutory duty of furnishing his employees with a safe place of employment ? We think not. The danger was not created by the master, either directly or indirectly, for the employees were not acting within the scope of their employment when assembling and using the appliance. There was nothing in the duties of either that required or contemplated that such action should be taken on their part. Nor could the employer reasonably anticipate such action. The law .wisely imposes upon the employer the duty to furnish a safe place of employment, but it does not hold him responsible for the unauthorized acts of employees who fail to furnish themselves a safe place when their duties do not require them to furnish it at all. Had the deceased remained at the place selected for him by his employer he would have been unharmed. He was injured because he and Hintz, who volunteered to help him, made a new place of employment and failed to make it safe, whether negligently or not is immaterial. Such new place having been made by the employees without the knowledge or consent of the employer, and without any necessity therefor arising out of the duties imposed upon them, he cannot be held liable for the unsafe condition thus created by them. 185 Goff v. C. R. & M. R. Co. 86 Wis. 237, 56 N. W. 465; Charron v. Northwestern F. Co. 149 Wis. 240, 134 N. W. 1048. The duty of the employer of furnishing a safe place does not extend to places needlessly chosen by employees without his knowledge, but is limited to places which it is his duty either directly or by necessary implication to furnish. ' \ An employer’s duty to furnish a safe place of employment is met when he furnishes a place which is safe provided the employment is carried on as the employer directs, or as an ordinarily prudent person may reasonably anticipate it may be carried on by the employee. He is not bound to furnish a place that shall be safe in any event, no matter how the employee does his work. Montevilla v. Northern F. Co, 153 Wis. 292, 141 N. W. 279. By the Gourt. — Judgment affirmed.