Van de Zande v. Chicago & Northwestern Railway Co.

The following opinions were filed January 7, 1919: Eschweiler, J. The plaintiff’s employment at the time of the injury not being within the field of interstate com [630] merce, and it being conceded that the parties were not subject to the provisions of the workmen’s compensation act, this appeal presents but the very narrow question as to whether the trial court should have held as matter of law that plaintiff’s injuries were not caused by any violation by defendant of the statutory obligations toward plaintiff imposed upon it by secs. 2394 — 48, 2394 — 49, Stats. These statutes provide, among other things, that the employer “shall furnish a place of employment which shall be safe for employees therein, . . . shall adopt and use methods and processes reasonably adequate to render such employment and places of employment safe, and shall do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employees;” 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, and no such employers shall . . . fail to adopt and use methods and processes reasonably adequate to render such employment and place of employment safe, and no such employer shall fail or neglect to do every other thing reasonably necessary to protect the life, health, safety or welfare of such employees.” The absolute nature of the statutory obligations thereby placed upon the employer of labor as to the safety of place, process, and method in and about the employment, and that the regulation applies as well to the place where the employment is carried on, as here, but temporarily, as well as to the place of continuous or permanent employment, by sub. (1), sec. 2394 — 41, Stats., all has been so often stated that it is unnecessary now to either paraphrase or repeat what has been so repeatedly decided by this court. Kielar v. Fred Miller B. Co. 165 Wis. 237, 241, 161 N. W. 739; Sullivan v. C., M. & St. P. R. Co. 163 Wis. 583, 158 N. W. 321; Mayhew v. Wis. Z. Co. 158 Wis. 112, 147 N. W. 1035; Murphy v. Interlake P. & P. Co. 162 Wis. 139, 155 [631] N. W. 925; Kelly v. Kneeland-McLurg L. Co. 161 Wis. 158, 152 N. W. 858; Kuligowski v. Kieckhefer B. Co. 160 Wis. 320, 151 N. W. 808; Kendzewski v. Wausau S. F. Co. 156 Wis. 452, 146 N. W. 516; Rosholt v. Worden-Allen Co. 155 Wis. 168, 144 N. W. 650. That countless thousands of railroad employees and others have undoubtedly made just such exits from box cars without receiving injuries; that such a method of making a descent is so similar to that pursued so successfully and repeatedly and almost from an equal height from time immemorial by the farmer boy who, jocund, leaps with the lark at break of day, and, still jocund, leaps from his wagon at the dinner horn’s bray; that the drop in the space between the floor of the car and the ground may be so materially lessened by the apparently simple expedient of either by an anterior or posterior outward exposure of the body allowing the legs to dangle down the side of the car and then sliding the balance of the way, all present such considerations as to give great weight to appellant’s contention here; that contention being that under our decisions upon the statutes herein involved, the master is not an insurer of the safety of the employee, but only such as to the safety of place or process,- and that therefore the employer could not reasonably be expected to anticipate and guard against some such result as here claimed to one who voluntarily chose the greater rather than the lesser of the fields open to him in a practical application of the law of falling bodies, or that injury might result from a method theretofore pursued with seemingly invariable safety. In view, however, of the rapid changes and improvements in safety of place, process, and methods of employment in the industrial world constantly going on and seemingly in almost geometrical rather than arithmetical progression, and of the imperative language of the legislature, we do not feel that we can say that the situation here is [632] one within the domain in which the court must pronounce the final yea or nay as a question of law, rather than one within the province of the jury. That this is the first recorded occurrence brought to our attention or apparently to be found in the decisions of other jurisdictions of such a peculiar and serious result following such a customary practice, while quite persuasive as an argument against our upholding the decision of the trial court and the jury, yet cannot, of course, of itself be a controlling reason for requiring us to hold that it does not give rise to a liability under this new statute or that from its mere priority it bars the injured one from his otherwise proper relief. The jury in this case had before them evidence that while the section crew of which plaintiff was a member had furnished to them tools to work with, such as picks and pinchbars, but no ladders, yet that the repair men working alongside them in the same yard had ladders furnished them to climb into as well as upon such cars; they might also have considered that which is matter of common knowledge, that the ends of just such box cars as well as freight cars are supplied with extensions to the side or end ladders in the shape of one or more ladder rungs outside and below the floor or platform of the'car, which such extensions, while primarily no doubt for assistance in ascending, yet nevertheless, to the extent of their length, do lessen the height of any drop from the car, and that none such were supplied at the doors of box cars; and furthermore, the facts, also matters of common knowledge, that a great share of the ordinary loading and unloading of merchandise into and from such cars in the traffic for which such box cars are primarily used is done at platforms of the same height as the' car floors and needing for such work, therefore, no climbing in or jumping out as was necessary in the use required of them on this occasion. If the jury considered this particular use of box cars as in the nature [633] of a special use they may have considered that the furnishing of some special means for getting out of such cars on such an occasion was within the field of the master’s duty prescribed by the statute before us. It was therefore within the province of the jury’s discretion to find as it did in answering the first question of the special verdict, and with that exercise thereof we cannot see our way clear to interfere. By the Court. — Judgment affirmed.