Murray v. Paine Lumber Co.

YiNje, J. After tlie rendition of tbe verdict plaintiff moved the court to change each of- the answers to questions 5^-, 6, and J from Yes to No, and that the plaintiff have judgment upon the verdict as amended by the court, or, in «ase the court refused do change the said answers or any of them, that the plaintiff have judgment upon the verdict as rendered. The court refused each and every one of plaintiff’s motions, and upon motion of the 'defendant entered judgment in its favor. Whether the trial court in so doing was of the opinion that by its answer to question No. 8 the jury found that plaintiff assumed the risk, or whether the -court was of the opinion that the question of plaintiff’s assumption of risk was not passed upon by the jury and it found relative thereto in favor of the defendant, does not .appear from the record. Question- No. 8 does not in terms constitute a finding upon the issue of plaintiff’s assumption •of risk. The instructions relative thereto, however, given by the court are broad enough to include such issue. The court said: “If an employee knows that' a structure or machine is unsafe and dangerous he has the right to refuse to use it. If he does use it, with such knowledge, he assumes the risk. Now, did the plaintiff go on this platform and use it voluntarily, or was he compelled to go there by order of some superior officer ? That is for you to determine from all the evidence and answer either Yes or No. The words ‘voluntarily used’ mean using the scaffold with full knowledge of a change of condition.” The jury returned an 'affirmative answer to the eighth question, and if that stood alone in the special verdict upon the issue of plaintiff’s assumption of risk it would, taken in [414] connection with tbe above instruction, constitute a finding to tbe effect that plaintiff assumed tbe risk. But' tbe court in submitting tbe ninth question, wbicb was, “Did any want of ordinary care and prudence on tbe part of tbe plaintiff contribute to tbe injuryinstructed tbe jury as follows: . “An employee is bound to take notice of sucb dangers as are open and obvious, and are equally open to bis observation as to that of bis'employer. If be is of mature age and ordinary intelligence, be is presumed to know tbe dangers which by the exercise of ordinary care and prudence be might have ascertained. As to all such he assumes the risk. But be does not assume, tbe risk of sucb dangers as arc bidden and concealed and known to tbe employer but not known to him. Now, was the manner of the construction of this 'platform known to the plaintiffV’ This instruction also submits under this question tbe issue of whether or not tbe plaintiff assumed tbe risk, and tbe jury answered the question in tbe negative. It is therefore impossible to tell whether tbe jury found in favor of or against tbe plaintiff upon this issue. That there may be an assumption of risk and absence of contributory negligence is well settled. Campshure v. Standard Mfg. Co. 131 Wis. 155, 118 N. W. 633; Dodge v. Kaufman, 152 Wis. 171, 139 N. W. 741; Van Dinter v. Worden-Allen Co. 153 Wis. 533, 138 N. W. 1016, 142 N. W. 122. And bad tbe instructions under question 9 related solely to contributory negligence there would have been no conflict in answers to questions 8 and 9. But tbe effect of an answer must be determined in tbe light of tbe instructions given in connection with tbe question, and it may be broader than tbe mere wording of tbe question itself would imply. Panoff v. C., M. & St. P. R. Co., ante, p. 99, 143 N. W. 1070. So tbe difficulty here is that, taken in connection with tbe instructions given, the answers to questions 8 and 9 are conflicting. Tbe better practice would have been to submit a specific question as to whether or not plaintiff assumed the risk. Sucb question [415] was in substance requested by the defendant to be given. It asked for tbe submission of this question: “Ought the plaintiff, Murray, in the exercise of ordinary care, to have known of the danger, if any, of'using the,platform on which he was injured, as it was used in the condition it was in at the time of the accident ?” In the 'margin of the record, opposite this question, in pencil, is the notation “embraced in con. negligence,” said to have been made by the trial judge. It is apparent, however, that in rendering judgment for the defendant the trial judge did not consider that the question of plaintiff’s assumption of risk was included in the question of contributory negligence, for the jury answered that question in the negative. Such answer, unchanged, together with the other answers of the special verdict, exclusive of the answer to question No. 8, entitled the plaintiff to judgment. If the answer to question 8 was considered the court could give judgment to neither party, for since the defendant requested the question relative to the issue of plaintiff’s assumption of risk to be submitted to the jury, and it was not submitted, the court could make no finding thereon in its favor, unless it could be held as a matter of law that plaintiff assumed the risk. Sec. 2858m, Stats. 1911. That' the defense of the assumption of risk was available to the defendant in this case is held in Koepp v. Nat. E. & S. Co. 151 Wis. 302, 139 N. W. 179; Kosidowski v. Milwaukee, 152 Wis. 223, 139 N. W. 187; Van Dinter v. Wordern-Allen Co. 153 Wis. 533, 138 N. W. 1016, 142 N. W. 122. Uefendant claims that' from the evidence in the case it should be said as a matter of law that plaintiff assumed the risk. We have, however, been unable to come to this conclusion, and are of the opinion that' the question of plaintiff’s assumption of risk is one for the jury. Our attention is called to the case of Gombert v. McKay, 201 N. Y. 27, 94 N. E. 186, said to be decisive of this case. It was there found that the injured employee knew fully and accurately [416] the materials and manner of construction of the scaffold,, that' he was a man of extended experience as to the building- and uses of scaffolds, and approved the plan devised by his fellow workmen for the erection of the one upon which he-was injured, and the court held that he assumed the risk and therefore defendant was not liable. In the case at bar we-have no such state of facts. It is true the evidence shows-that the plaintiff assisted in making the change in the scaffold by holding the joist while it was being nailed. But it does not appear that he knew the condition of the piling td which the south end of the joist was spiked nor that he knew" of the number of spikes that his fellow workmen used in spiking it to the piling. The fact that Erdman advised the employee who did the spiking, in the presence of plaintiff, to use more spikes, taken in connection with the reply of the workman that it was strong enough and would hold,: cannot be said as a matter of law to charge plaintiff with the-assumption of risk. Under the statute (sec. 1636 — 81, Stats.) it became the duty of the employer to furnish a safe and suitable scaffold for the use of the employee. It is argued that the scaffold: originally furnished was safe and suitable, and that it became unsafe by reason of the change voluntarily made by the employees themselves. The change was necessitated by the nature of the work, and it appears that defendant’s foreman, Montgomery, was present, saw that it was made, and acquiesced therein. It must therefore be held that the scaffold as changed was in fact the scaffold which the employer was required to furnish the employees, and that the statutory duty to furnish a safe scaffold applied as well to the change or addition thereto as to the scaffold as originally constructed. The defendant cites the cases of Brown v. Conners, 149 Wis. 403, 135 N. W. 857; Strehlau v. John Schroeder L. Co. 142 Wis. 215, 125 N. W. 429; McKillop v. Superior S. Co. 143 Wis. 454, 127 N. W. 1053; Howard v. Belden417 ville L. Co. 129 Wis. 98, 108 N. W. 48; Crams v. C. Reiss C. Co. 125 Wis. 1, 102 N. W. 586; and Richter v. Union L. Co. 153 Wis. 261, 140 N. W. 1126, in support of tbe doctrine tbat an employer cannot be held liable for furnishing an unsafe place for -work where such place is changed by the workmen themselves in the course of their work. So far as the scaffold in question is concerned, this is not such a case. It became necessary to make a single alteration in it in order to enable the workmen to better and more expeditiously do their work. So far as the. scaffold was concerned, it was not a place- of. work that, necessarily changed during the progress thereof within the meaning of the cases cited. Because of the inability to determine from the special verdict, taken in connection with the instructions of the court, what the jury’s finding was upon the issue of plaintiff’s assumption- of risk, the judgment must be reversed and the case remanded for a new trial. By the Court. — Judgment reversed, and cause remanded for a new trial.