Bugajski v. Milwaukee Western Fuel Co.

RoseNBERRY, J. This case was before this court on a former appeal and it was there held that the evidence, which was not substantially different from the evidence now before us, [118] was sufficient to take the case to tbe jury upon the issuable facts, and were that not the case we could not say that there is no credible evidence to support the verdict. Bugajski v. Milwaukee Western F. Co. 158 Wis. 454, 149 N. W. 211. The defendant earnestly contends that its motion for judgment in its favor notwithstanding the verdict should have been granted, for the reason that “there is no evidence of any breach of any duty of defendant toward plaintiff. Defendant is not responsible for the negligence of Fisher or Budner, fel-lowrservants of plaintiff.” The defendant claims that by making and putting into effect a positive rule prohibiting Fisher or Budner from assigning inexperienced men to work at the niggerhead it discharged its duty to the plaintiff and was not liable for any negligence of Fisher or Budner in putting the plaintiff to work at the niggerhead without warning or instructions. It appeared that the foremen, while forbidden to send inexperienced men to work at the niggerhead, were authorized to select men and to break them in as operators, and that the plaintiff was subject to the direction of the foreman Fisher at the time of his injury. The question of whether or not the defendant is liable depends upon whether the duty to warn the plaintiff under all the circumstances was one which it might delegate to its foremen. The defendant claims it was such a duty and relies upon the case of Gereg v. Milwaukee G. L. Co. 128 Wis. 35, 107 N. W. 289, as sustaining its position in that respect. We think this case is clearly distinguishable from the Gereg Oase, and for this reason: The danger to which the plaintiff in that case was subject was one as well kno'wn to the plaintiff as to the defendant. There was nothing latent or hidden about it; it was perfectly obvious. The foreman having been instructed to warn the workman of the approaching car and having undertaken the performance of that duty, and it appearing that he was competent to perform the same, his [119] negligence in failing to give tbe warning in accordance with his instructions was that of a fellow-servant. In the instant case the danger was hidden, latent, unknown to the plaintiff and known to the defendant, and it was the defendant’s duty to warn and instruct the plaintiff in respect thereto, and it has been repeatedly held that an employer’s duty in this respect cannot be delegated, and that the person charged with the duty of giving the warning or instruction stands in the place of the employer. Wysocki v. Wis. Lakes I. & C. Co. 121 Wis. 96, 98 N. W. 950; Gussart v. Greenleaf S. Co. 134 Wis. 418, 114 N. W. 199; Schmolt v. H. W. Wright L. Co. 145 Wis. 511, 130 N. W. 499; 4 Labatt, Mast. & Serv. (2d ed.) § 1508. It being established by the verdict that the plaintiff was set to work at the niggerhead without warning or instruction, the duty to give such warning being one which the defendant could not delegate, it necessarily follows that the defendant is liable for the negligence of its servant in that respect. The defendant further contends that the trial court erred in admitting evidence as to the condition of the railway tracks on which the cars were being moved at the time of the accident. While there is no allegation in the complaint that the railway tracks were defective or that any defective condition of the tracks contributed to the injury, we cannot say that under the circumstances of this case the admission of this evidence constituted reversible error, if error it was. By the Court. — Judgment affirmed.