Beck v. Siemers

Jones, J. It is-conceded that the relations of the parties were su'ch that it was the duty of defendants to furnish the plaintiff a safe place to work and to furnish such safety [440] devices and safeguards as are provided by sec. 2394 — 48, Stats. It is also conceded that the plaintiff was not engaged in farm labor, but was engaged in private domestic service which involved the use of mechanical power within the meaning of sec. 2394 — 41. It follows from this that under the statute first above cited it was no defense that the employee may have assumed the risk of the employment. It is too well settled to require discussion that although the statute in such cases deprives the employer of the defense of assumption of risk, that of contributory negligence remains. Puza v. C. Hennecke Co. 158 Wis. 482, 149 N. W. 223; Fandek v. Barnett & Record Co. 161 Wis. 55, 150 N. W. 537. It is established by the undisputed testimony and the verdict that the place of employment was not reasonably safe; that it was practicable for defendant to use such safety devices as to render the place of employment safe without preventing the practical operation of the machine; that such safety devices were not provided, and that the failure to provide them was the proximate cause of the injury. These are issues which are usually warmly contested in cases of this character, but in their absence the only questions before us are whether the issue of contributory negligence was properly submitted on instructions to the jury, and whether there was any evidence to sustain the verdict of the jury as to contributory negligence. It is strongly urged by respondent’s counsel that contributory negligence was shown by the testimony of the plaintiff to the effect that she was not looking at the wheel and was only looking at the wringer when the accident happened. It is claimed that if she had gathered her skirts in her hands and looked more carefully the accident would not have happened. » In considering these arguments certain other facts are to be borne in mind. Unlike some other cases under these [441] statutes where contributory negligence has been discussed, the plaintiff can be charged with no negligence in creating the conditions under which she worked. Her employers alone were responsible for those conditions. She had not been warned of any danger. It is argued that the danger was perfectly obvious and that ordinary care required her to take notice of it. But she and her mistress had often done the same work, and, so far as the testimony shows, in the same manner, without any resulting injury of which she had knowledge. The injury was closely connected with the act of reaching for and taking down the wringer, when most of the time her gaze was in a different direction from the engine. In obeying the directions of her mistress she was required to pass near the engine, a dangerous machine when unguarded, and yet the testimony shows that she was unaware of the danger in doing her work in the manner she did. A brother of defendant testified that the fly-wheel, running at 500 revolutions per minute, would create considerable suction, and that if a woman of the size of plaintiff stood between the fly-wheel and the kettle there would be some danger of her skirts being drawn into the fly-wheel by the suction, depending on how she stood. The defendant’s wife testified that the first summer they had the engine she walked so close to it that she was drawn close in and it caught her, but she grabbed her skirts loose; that she told her husband of it. It does not appear that plaintiff had been informed of this fac-t or of any other which would tend to put her on her guard. In this tendency of the machine was a hidden danger not likely to be appreciated by one unacquainted with machinery and not understood by plaintiff, and it is not at all unlikely that it was the cause of the injury. We are convinced by the testimony that plaintiff was doing her work in the usual afld customary manner, under the [442] direction of her employer, and in a place where there were dangers known to her employer but of which she was wholly ignorant. In order to establish contributory negligence the burden of proof was upon the defendant. After giving careful attention to the evidence and to the able decision of the trial court, we feel obliged to differ from him and to hold that the burden has not been met, and that there was no evidence on which to base the answer of the jury to question 6 finding that the plaintiff was guilty of contributory negligence. The testimony relied upon on that issue was only such evidence as showed assumption of risk, which was not a defense. We come to this conclusion less reluctantly because in the instructions there was nothing to inform the jury that continuing to work in proximity to a dangerous machine was not of itself contributory negligence.- In the case of Puza v. C. Hennecke Co. 158 Wis. 482, 149 N. W. 223, Mr. Justice Timlin said: “It is quite safe to say that an intended and continued use of a known defective appliance or a known unsafe place Ity the employee in substantially the same way as the employer instructed or intended it should be used, falls under the definition of assumption of risk as expressed in this statute and is not to be considered contributory negligence.” If the action had been brought before the enactment of the statute^ above cited it would have been a proper question for the consideration of the jury whether plaintiff had assumed the risk. Although the defense has been abolished, and although it is no longer necessary to submit to the jury the question of assumption of risk, it would seem best in cases of this character to instruct the jury that merely continuing in an employment and doing work as intended by the employer and the employee in the usual and ordinary manner, although the place of work or appliance is unsafe, does not constitute contributory negligence. In view of the facts in this case, if such an instruction had been given it is quite probable that the answer of the jury to question 6 [443] might have been different. But no such instruction was requested and we do not base our decision on that ground. By the Court. — The judgment is reversed, and the cause is remanded with directions that the answer to question 6 be changed from Yes to No and that judgment be entered for the plaintiff for the amount of damages assessed by the jury.