Kielar v. Fred Miller Brewing Co.

Rosenberry, J. The defendant strenuously urges that “the evidence clearly shows that the danger of stepping on nails in this particular shop was incident to the service which plaintiff was performing; that 'he knew and appreciated the danger; that he knew the floor had boards or strips on it; and that such boards and strips usually had nails in them; that old boards and strips were around and that nails [240] were always left in them, and that in the particnlar place over which he walked several times without injury there were old strips, presumably with nails in them, which had been there three weeks to his knowledge,” and that upon such facts it must be held that plaintiff assumed the risk as a matter of law, citing a large number of cases, beginning with Paule v. Florence M. Co. 80 Wis. 350, 50 N. W. 189, and ending with Massy v. Milwaukee E. R. & L. Co. 143 Wis. 220, 126 N. W. 544. It may be admitted that upon the facts shown by the undisputed evidence in this case and under authorities cited the plaintiff assumed the risk. But from that it does not necessarily follow that under the law as it stands today plaintiff assumed the risk. Since the last of these cases was decided the so-called safe-place statute has been enacted (secs. 2394— 48 and 2394 — 49, Stats. 1915). If the enactment of this statute casts upon the employer no greater burden than theretofore existed in respect to furnishing a safe place for his employees to work, then the doctrine of assumption of risk as set out in Paule v. Florence M. Co., supra, and other cases cited, might apply. The employer in this case had elected to come under the Workmen’s Compensation Act. The accident occurred August'15, 1913, and at that time the plaintiff, the employee, had not elected to come under the act; so that by the terms of the law as it stood at the time of the happening of the accident the defenses of assumption of risk, negligence of a fellow-servant, and contributory negligence were available to the defendant. However, the defendant was not excepted from the provisions of secs. 2394 — 48 and 2394 — 49, Stats., and therefore the rights of the parties must be determined with reference to the safe-place statute. In Rosholt v. Worden-Allen Co. 155 Wis. 168, 144 N. W. 650, this court held that the duty imposed by the safe-place statute is as mandatory and as absolute as that imposed by ch. 396 of the Laws [241] of 1911 (sec. 1636/y, Stats. 1913). In Janiak v. Milwaukee Western F. Co. 156 Wis. 544, 146 N. W. 188, it was Reid that see. 1636jj, Stats., abolished assnmption of risk in cases where it is applicable. In Besnys v. Herman Zohrlaut L. Co. 157 Wis. 203, 213, 214, 147 N. W. 37, this court, having under consideration secs. 2394 — 48 and 2394 — 49, speaking of the facts of that case, said: “Was the danger and hazard to which the plaintiff was subjected at the time of the injury one created by him through his negligent acts, or was the danger and hazard one incident to the method and process of conducting this business ? In answering this question the purpose of the enactments must be consulted. It is manifest from their context that the legislature intended that employers should be liable for all injuries resulting to employees from unsafety in employment as regards to places, safety devices,- and safeguards, and to methods and processes of conducting their business. The clear implications are that the risks and hazards of an employment resulting from the failure of the master to comply with these requirements are risks and hazards incident to the employee’s duties, though they may be of an obvious nature. ... We are led to the conclusion that the legislative purpose expressed by these enactments is that the consequent injuries from all hazards, risks, and dangers incident to the method, process, and conditions of the business furnished, permitted, or suffered by an employer, however obvious and open the hazards, risks, and dangers may be to the employee, are to be borne by the employer, and shall not defeat a recovery of damages for an injury to an employee engaged in the line of his duty or for death resulting from such an injury.” The jury having found that the employer had not performed its statutory duty and that such failure was the proximate cause of plaintiff’s injuries, the risk was clearly one not assumed by the plaintiff. To hold that an employer may fail in the performance of the duty imposed upon him by the statute and that an employee assumes the risk of injury therefrom would emasculate the statute. Where the safe242 place statute applies, the employer must comply with, the law, and his employees do not assume the risks arising from his failure to do so. Upon sufficient evidence to sustain its verdict the jury found that plaintiff was not guilty of contributory negligence. It was claimed by the defendant that some time after the injury plaintiff applied plantain leaves to his foot and thereby caused an increase or spreading of the infection already in'the wound, and the defendant asked that the court submit to the jury a question embodying this claim. This the court declined to do and error is assigned thereon. In submitting the case the court carefully instructed the jury that it was the duty of the plaintiff to make his injuries as little as possible by exercising ordinary care, and if they found that plaintiff failed to exercise such ordinary care by using plantain leaves and that thereby his injuries were increased they should omit and exclude from the damages such injury as resulted from the use of plantain leaves. We think the instruction given was correct and that the refusal of the court to submit the question requested by the defendant was not error. The jury assessed plaintiff’s damages at $7,500. It is claimed they are excessive. It appears that plaintiff had expended $1,136.35 for surgical attendance and hospital bills up to the time of the trial; he was thirty-three years of age and was earning $4 a day at the time of the accident; he was subjected to six operations, two of his toes and part of his foot being removed; he cannot stand on his foot or use it; and he testified that he suffered great pain at all times. Under these circumstances we cannot say that the verdict is excessive. By the Court.- — -Judgment affirmed.