Langos v. Menasha Paper Co.

SiebeoKbe, J. The defendant contends that the trial court erred in denying its motions for a nonsuit and for a direction of the verdict in its favor, upon the grounds that the evidence in the case shows that the defendant furnished plaintiff a safe place of employment and that it adopted and used such methods and processes as were reasonably adequate to render his employment and place of employment safe. The statutes governing the case are embraced in ch. 485, Laws of 1911. The section of this chapter which controls the rights of the parties has been considered in recent cases, and we refer to the case of Rosholt v. Worden-Allen Co. 155 Wis. 168, 144 N. W. 650, for an exposition of those parts that are applicable here. It is there declared: “Said ch. 485 is applicable beyond any doubt to all employees and all employers in this state, excepting only such as — 424 — are expressly exempted from its operation. Sec. 2394 — 48 requires every employer, among other things, to fnrnish a place of employment'which shall he safe for employeesSee. 2394 — 49 provides that no employer ‘shall require, permit or suffer any employee to go or be in any employment or place of employment which is not safe.’ Sec. 2394^-41 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.’ ” It is also declared in that ease that these sections, in connection with others there cited, “make some radical changes in the common law as it existed when the act was passed,” and that “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.” See, also, Tallman v. Chippewa S. Co. 155 Wis. 36, 143 N. W. 1054. The jury found that the defendant failed to furnish plaintiff a place of employment' in which to perform his duties in making the repair on the paper machine which was safe, and that this failure on its part proximately caused the plaintiff’s injuries. The trial court held that the evidence sustained these findings. The question is, Did the court err in holding that the evidence in the case sustains these findings? It is alleged that defendant failed to furnish the plaintiff a safe place of employment and that it required, permitted, and suffered him to go and be in a place of employment which was not safe because the paper machine was not stopped while plaintiff was required to repair the guide board, or felt guide, as described in the foregoing statement. This statement shows the nature of the repair the plaintiff was engaged at; the condition of the place on the machine where he stood; the method employed to perform — 425 — tbis duty while the machine ivas running. It appeared that the superintendent, under whom the plaintiff worked, discovered that the felt guide was out of repair shortly after the machine was started in the morning and that it required repair before any paper could pass through the machine, and that he directed the plaintiff to make the repair. Following this direction of the superintendent, the plaintiff procured the measuring stick and mounted the machine at the place and in the manner heretofore stated, in the presence of the general-manager and while the superintendent was in the room and the machine was running. It also appears that the duty of starting and stopping the machine devolved on the superintendent and the machine tenders. The claims of the defendant are that the facts and circumstances bearing on defendant’s alleged defenses do not support the finding that defendant failed to furnish the plaintiff a safe place of employment land that it required, permitted, or suffered him to go and be [in an unsafe place of employment. On the first branch of ■¡his question, namely, whether or not the place where the plaintiff stood on the machine while it was running was as [ree from danger “as the nature of the employment will realm ably permit,” there is hardly room for controversy. It lems plain that the machine could have been stopped with-it seriously interrupting the business, and that this obviously juld have rendered the place of plaintiff’s employment safe would have avoided requiring, permitting, or suffering to go or be in an unsafe place of employment. It is [muously contended that defendant was not in default in litting the machine to run while the plaintiff was so en-Jsd in making the repair, and that the presence of the man-I and superintendent, who were in the room and knew how repair was being made, did not relieve the plaintiff, be-it devolved on the plaintiff, under the circumstances of iployment and duties, to have the machine stopped, and re consequences of the machine not being stopped, under — 426 — the situation presented, are not attributable to the defendant under the statutory regulation. In considering this claim it is necessary that the ultimate questions of the plaintiff’s contributory negligence and his assumption of the hazard incident to his employment be kept separate from defendant’s absolute duties in the matter, though the same evidential facts may be relevant and material to all these inquiries. The plaintiff clearly ranked as a subordinate to Smith, the manager, and Torsrud, the superintendent, and was under express direction of the superintendent to repair this felt guide. The manager and superintendent both participated in directions and seeing that the duty was performed and must have known that the machine was then running. ' Their presence and conduct furnish a basis for the inference by the jury that they sanctioned the method of making this repair by the plaintiff while the machine was in motion, and that they thus required, permitted, and suffered the plaintiff to go and be in this place while performing this duty. Under these facts and circumstances the jury had to resolve the inquiry whether or not the defendant’s representatives were guilty of an omission i of duty in conducting the repair operation as was done and inj requiring, permitting, or suffering the plaintiff to go and bej in' this place of employment while the machine was in motion.! These inquiries are embraced in the first question of the spel cial verdict, and under the evidence the jury were justified iii answering it in the negative. It is urged that the plaintiff was a millwright, and as sucl it devolved on him to have the machine stopped if that wl necessary to provide him a safe place of employment, heretofore stated, he was a subordinate to the manager superintendent and under the express direction of the supei| tendent to make this repair. Under these relations of l employment and the circumstances of the case, it is appaa that his conduct in mounting the machine to make the re] — 427 — while it was in motion, and his duties and authority in the matter, can hear only on the questions of his having assumed the hazard incident thereto aid whethel or not he was guilty of contributory negligence. Since assumption of the risk is no defense, it remains to inquire whether or not the plaintiff was guilty of contributory negligence as a matter of law. The evidence shows that his superiors in authority evidently did not regard the stopping of the machine as necessary to make the place of the plaintiff’s employment as safe as the nature o? the employment would reasonably permit. As we have pointed out, their conduct in this regard was a subject for inquiry by the jury, who found them guilty of a breach of duty in requiring, permitting, or suffering the plaintiff to go and be in an unsafe place under the statutory regulations governing this case. In the light of all the facts and circumstances, it cannot be said the plaintiff was guilty of contributory negligence as a matter of law in going and being in this place to make the repair in question without first requesting the machine to be stopped, nor do the facts show as a matter of law that he was negligent in the way he descended from his position on the machine and when his hand was caught between the rollers. An uncertainty as to the plaintiff’s contributory negligence inheres in the case which requires that it be submitted to the jury. Klotz v. Power & M. M. Co. 136 Wis. 107, 116 N. W. 770. The court properly submitted this question to the jury, who resolved it in the negative. We have examined the exceptions respecting the court’s rulings on evidence and find that no prejudicial error was committed by the court. Upon the facts adduced in evidence the jury were authorized to find that the defendant failed in performing its duty toward the plaintiff in the respects here-inbefore indicated, which proximately caused the plaintiff’s injuries, and that he was free from contributory negligence; — 428 — we therefore do not discuss the alleged errors bearing on other grounds of negligence. The record presents no reversible error, and the court properly awarded judgment. By the Oourt. — The judgment is affirmed. Timlin, J., dissents.