Olson v. Whitney Bros.

The following opinions were filed February 9, 1915: Vihje, J. Plaintiff’s counsel makes the broad claim that since the statute, sec. 2394 — 1, Stats. 1911, as applied to this case, abolished the defense of assumption of risk and the negligence of fellow-servants, and since by sec. 2394 — 48 it required the master to furnish a safe place of employment, the only defense open to the defendant was that of contributory negligence; that it is an insurer of the safety of the place and appliances furnished and cannot escape liability by showing that they áre safe within the meaning of the statute. To sustain this claim the cases of Koepp v. Nat. E. & S. Co. 151 Wis. 302, 321, 139 N. W. 179; Kosidowski v. Milwaukee, 152 Wis. 223, 139 N. W. 187; and Rosholt v. Worden-Allen Co. 155 Wis. 168, 144 N. W. 650, are cited. The first two cases were decided under sec. 1636 — 81, Stats. 1911, which was repealed by ch. 588, Laws of 1913. 1‡ prohibited an employer in certain kinds of labor from furnishing scaffolding, hoists, stays, ladders, or other mechanical contrivances that were “unsafe, unsuitable or improper.” The statute did not define the words “unsafe, unsuitable or improper,” and the court applied to them their usual meaning and held that if an unsafe appliance of the kind mentioned was furnished and an accident to an employee resulted while engaged in the labor specified in the statute, the employer was liable unless he could show assumption of risk or contributory negligence or both. It mattered not that he might himself be free from negligence. In that sense he was an absolute insurer of the safety of the appliance. The statute applicable to this case is quite different in its language. It says the employer shall furnish a safe place of — 610 — employment, but it defines tbe word “safe” to mean “such freedom from danger to tbe life, bealtb or safety of employees or frequenters as tbe nature of tbe employment will reasonably ’permit.” Sub. (11), see. 2394 — 41. Here the duty is measured by such safety as tbe nature of tbe employment will reasonably permit. Under sec. 1636 — 81 tbe prohibition against an unsafe appliance was absolute. Our present statute recognizes tbe “rule of reason” and does not impose upon an employer an impossibility or an unreasonable burden. Under either law if tbe employer has failed to meet tbe statutory requirement, if there be no other defense, be is absolutely liable. But if be bas met tbe statutory requirement; if bis place of employment is safe witbin tbe statutory definition, then be cannot be held liable on account of its condition though it may not be safe in tbe original technical sense of tbe term. Tbe duty imposed upon tbe employer by tbe statute is absolute in tbe sense that if bis employment or place of employment fails to come up to tbe statutory requirement, in tbe absence of other defenses be cannot escape liability by showing that be exercised ordinary or even extraordinary care to make it safe. Tbe exercise of care on bis part becomes immaterial as a defense per se. Tbe only pertinent inquiry is: Was bis place of employment safe witbin tbe meaning of tbe statute ? If it was not, then tbe amount of care he may have exercised to make it so becomes immaterial. This rule was announced in Rosholt v. Worden-Allen Co. 155 Wis. 168, 144 N. W. 650. There can be no liability, absolute or otherwise, until a violation of tbe statute is shown. It follows from this that an injury may result from a place of employment that is not safe in tbe technical sense and yet the employer may not be liable because bis place of employment may have conformed to tbe statutory requirement. It may have been as free from danger as the place of employment would reasonably permit and yet have been far from actually safe, because there are many — 611 — places of employment that are dangerous notwithstanding they have been made as free from danger as the nature of the employment will reasonably permit. In the present case the jury found that the chain that broke and injured plaintiff was of sufficient strength at the time of the injury to render the operation of moving the pile-driver in the usual and customary manner of moving it as free from danger to the safety of the employees moving it, including plaintiff, as the nature of the work of moving it reasonably permitted. It is urged that this is not a finding in accordance with the statute because it tests the sufficiency of the chain by the strength required to move the pile-driver in the usual and customary manner. It is claimed that it should have been as strong as it could reasonably have been made, so that no matter in what manner the pile-driver was moved it would have held the strain. This raises the question whether the statute was intended to require a place of employment or an appliance to be made as free from danger as the nature of the employment will reasonably permit irrespective of the kind of employment to be carried on within it or the probable use to which the appliance may be put; or whether it means that, having regard to the nature of the employment and the probable use to which an appliance may be put, the place of employment and.'the appliance shall be so constructed and in such condition that they shall be as free from danger as the nature of the employment will reasonably permit. It seems the latter must have been the legislative intent. Throughout both the Workmen’s Compensation and Industrial Commission Acts there is a studied attempt to safeguard the health, life, and limb of-employees to the utmost in so far as the same can be done without placing unnecessary or unreasonable burdens upon the employer. The legislation was a laudable and quite successful attempt to better industrial conditions for both employer and employee. Upon both were placed additional duties of care to the end — 612 — that the employees might suffer less by way of injuries and the employer less by the way of damages for injuries. B'ut there was no intent to place upon either an impossible or unreasonable burden. To hold that it was the legislative intent that an appliance should be made as strong as it reasonably could be made irrespective of the use for which it was intended, would be to convict the legislature of placing upon employer and employee alike an unreasonable burden. Giant-like tools and appliances far in excess of the usual margin of safety would have to be furnished and used, because they could reasonably be so made. Under such construction of the statute it would be no excuse to say that,, for the purpose intended and as customarily used, appliances of far less weight and size would be amply adequate and safe. It would prevent the use of tools and appliances fit for the work and substitute for them unreasonably heavy and cumbersome ones which themselves might cause accidents by reason of their weight and size. Places of employment and appliances are safe within the meaning of the statute when they are so constructed and in such condition that, considering the nature of the employment conducted in them and the manner in which it is customarily carried on, or the manner in which an ordinarily careful and prudent man may reasonably anticipate it might be conducted, and considering the use the appliances are, with the knowledge of the employer, being put to, or the use which an ordinarily careful and prudent person may reasonably anticipate they might be put to, they are as free from danger as such employment and such use will reasonably permit. Montevilla v. Northern F. Co. 153 Wis. 292, 141 N. W. 279; Kendzewski v. Wausau S. F. Co. 156 Wis. 452, 146 N. W. 516. In other words, safety is not an absolute, fixed term, but a relative one, being always measured by the kind of employment and the manner in which it is customarily carried on and by the use appliances are, with the knowledge of the — 613 — employer, being put to, or which an ordinarily prudent person might reasonably anticipate they may be put to. Therefore if a place of employment or an appliance is as free from danger as the nature of the employment will reasonably permit when used in a customary or usual manner for the work intended, or in such a manner as an ordinarily prudent and careful person might reasonably, anticipate it might be carried on or used for, it is safe, though it may not be safe for a condition or a manner of carrying on the work that could not reasonably be anticipated by the employer. The statute places no heavier duty upon him than to make the place of employment for his work as free from danger as the nature of it will reasonably permit. By his work is meant the kind of employment he is engaged in and the customary manner in which it is conducted, or the manner in which an ordinarily prudent person might anticipate it may be done. It follows, therefore, that the question submitted answered the statutory call. It is strongly urged that the jury’s answer to it is not supported by the record, since plaintiff’s evidence shows that the skids under the rollers were placed level and no unusual or unreasonable strain was put upon the. chain that broke. There is, however, an abundance of testimony on behalf of the defendant given by co-employees of the plaintiff that the skids were not placed level with the ones on which the rollers were; that plaintiff saw this and yet he signaled to the engineer to put on more and more power; that the latter did so till every part of the appliance groaned and creaked, as the witnesses put it, and the chain broke before the rollers climbed the ends of the skids. Plaintiff testified that it was customary to place the skids, and that they ought to be placed, level with the ones supporting the rollers, but not end to end. Instead they were placed so as to overlap some with those in position but parallel and level with them. To place them level it was often necessary to dig away some soil, — 614 — owing to the fact that those in position were more or less pressed into the ground by the weight of the pile-driver. The softer the ground the more they would he pressed in. There is evidence to show that the skids put in projected some two and one-half inches above the ones in position upon which the pile-driver rested. That would be quite a climb for rollers twelve inches in diameter carrying a load of from thirteen to thirty-five tons. Plaintiff was in full control of the crew and it was his duty to direct how the work should be done. One witness testifies: “Olson gave orders to put on the strain again after the bridge link was moved. He gave orders to put the strain on — gave orders that way (indicating with hand), and the man kept tending to the nigger and the engineer turned on a little more steam and the ropes began to squeak and everything pulled tight; strained, and he was motioning for more power and the driver moved a little — I don’t know how many inches, but not far until it struck solid and this kept on turning and finally the chain broke. The rollers were up against the end of the new skids. . . . The engine was pulling on the driver with the roller against the skid before the chain broke, probably a minute. . . . The ropes all squeaked and everything creaked from the stretch being pulled out of them. ... I saw what was going on. I saw Olson wave his hand when it would not climb that timber. I saw the man at the winch pull tighter on the rope. I saw the engineer putting on steam. I could see all that, that is what that means (indicating with hands). I could see it, I was within fifteen feet of the driver. ... I noticed afterwards the cable where it was around the pile and it cut into the pile, around the head of the pile. It dug three quarters of an inch, it couldn’t be got out without the aid of a peavey. The most of it was done this time. The rope had been around the pile for moving the driver down, and it never goes in far enough but what a man can take hold and lift it, but this time it was snared up tight. . . . They pulled hard enough to make a hole in the pile. It was three quarters deep. Two half hitches and had to pry it off with a peavey to get the thing off.'” — 615 — There was other testimony to the kame effect. Upon the evidence the jury was warranted in finding that had the pile-driver been moved in the customary manner and in the way .in which it could be reasonably anticipated the work would be conducted, the chain was safe. A broken link was received in evidénce and it is before us. According to plaintiff’s evidence it is the link that broke. Defendant’s evidence denies that it is. In view of the apparent defective condition of the link and the jury’s answer, we must assume that they found that it was not the link that broke. It is further urged by plaintiff that it was error to instruct -the jury that the burden of showing that the defendant did not furnish a sufficient chain to do the work was upon the plaintiff, and that the burden was upon him to show that such failure to furnish a sufficient chain was the proximate cause of his injury. Both contentions are founded upon the erroneous assumption that in an action under the statute, when it is shown that an accident has occurred, the plaintiff is entitled to recover unless the defendant can establish the defense of contributory negligence. Not so. The burden rests upon the plaintiff to establish that defendant has failed to comply with the statute and that such failure is the proximate cause of his injury. Instead of, as formerly, showing that defendant failed to exercise ordinary care, plaintiff must now.show defendant has failed to meet the statutory requirements as to safety. In both actions it is incumbent upon plaintiff to establish that defendant’s failure was the proximate cause of the injury. No other assignment of error is of sufficient importance to merit treatment. By the Court. — Judgment affirmed.