Maryland Casualty Co. v. Thomas Furnace Co.

Doerfler, J. It is plaintiff’s contention that the furnace company failed to furnish to Mullens a safe place of employment. Sec. 101.06, Stats. 1923, formerly sec. 2394 — 48, Stats. 1917, provides: “Every employer shall furnish employment which shall be safe for the employees therein and shall furnish a place of employment which shall be safe for employees therein and for frequenters thereof, and shall furnish and use safety devices and safeguards, and 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 and frequenters. . . .” Sub. (3), sec. 101.01, Stats. 1923, being sub.-(3), sec. 2394 — 41', Stats. 1917, provides: “The term 'employer’ shall mean and include every person, firm, corporation, agent, manager, representative or other person having control or custody of any employment, place of employment or of any employee.” ' Sub. (11) of said section provides: “The term ‘safe’ or ‘safety’ as applied to an employment or a place of employment . . . shall mean such freedom from danger to the life, health, safety or welfáre of employees or frequenters, ... as the nature of the employment, place of employment, . . . will reasonably permit.” In Olson v. Whitney Bros. Co. 160 Wis. 606, 150 N. W. 959, the statutes above referred to are construed, and it was [103] there held, present Mr. Chief Justice Vinje writing the opinion: “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 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 pertaining to a safe place of employment imposes upon the employer an absolute duty, and he can only comply with the statutory requirements by performing that duty, and unless he meets his obligations as thus required the amount of care which he has devoted will not relieve him from liability unless other available defenses are established. It appears from the evidence introduced by the plaintiff that during the two-weeks period while Mullens was engaged in his work, some gas was contained in the boiler. The valve in use was a patented device, and at the time of its installation was the best device known to furnace men engaged in a business similar to that of the furnace company. The president of the furnace company, Mr. Thomas, and the engineer, of the company, both of whom have had long years of experience in the furnace business, knew of no better device. In addition to the valve; in order to further frustrate the escape of gas the packing of the flue above the valve with wet sand and ashes to a height of about fourteen to eighteen inches was also resorted to. It would appear almost conclusively that the means adopted by the furnace company to prevent the escape of gas were not only in accordance with the usual method adopted by furnace men, [104] but that it constituted a method which was as safe as the business of the furnace company would reasonably permit. Under the provisions of the workmen’s compensation and the industrial commission acts, the commissioners were vested with the supervision of every employment and place of employment in this state, and they were authorized, and in fact it was their duty, to adopt and enforce all proper orders, rules, and regulations for the protection of the life, health, safety, and welfare of every employee in such employment or place of employment. Members of the industrial commission are experts in matters of this kind, and it would appear that unless a member had special knowledge with respect to manufacturing industries he would not be in a position where he could adequately fulfil the requirements of his office. No rule, regulation, or order .of the industrial commission requiring a different or better system to prevent the gas from escaping was called to our attention, and the evidence does not show that any effort whatsoever was made to provide a better system. The operation of a furnace like the one in question is one connected with unusual hazard to the life and health of the employees, and we assume that in adopting rules and regulations and in making and enforcing orders the commission would pay prompt and early attention to such a business. In the discharge of their duties the members of the industrial commission represent the public interest, which is designed to preserve life and health. Inquiry made at the office of the industrial commission and an inspection of the records of such commission by a member of this court yielded the information that at the time of the happening of the accident no order, rule, or regulation was in force by the commission which required a different method than that which was in operation at the plant of the defendant furnace company. We must assume that they had knowledge of the method employed, and, not having criticised the method or ordered or devised a different or [105] better method, that this method had the approval of the commission. It may be claimed, although such claim was made neither in the brief nor the argument, that it is a matter of common knowledge that a flue like the one in question can readily be so constructed as to be proof against the escape of gas, and that other methods such as ventilating systems may be introduced in order to purify the atmosphere in a boiler or other similar device. This, however, is a subject of which the court cannot take judicial notice. It is within the field of experts. Plaintiff’s counsel did not introduce evidence upon this subject, and, as before stated, no such device was deemed necessary by the industrial commission, and the members of such commission are experts. Work on boilers like that of the defendant furnace company is only performed at comparatively long intervals, when the boiler becomes out of repair or where a new boiler must be installed. The work of the deceased, Mullens, was not confined to the repair or replacement of furnace boilers, but to boilers in general. Adequate precaution had been imparted to the deceased with respect to his conduct in regard to his work in this boiler. He was the sole judge of the time necessary for recuperation in the open atmosphere. No evidence was introduced showing that employees prior to that time had either been overcome by gas or that any one had lost his life. Under these circumstances we can readily agree with the learned circuit judge when he directed a nonsuit upon the substantial ground that the place of employment was-as safe as the business of the furnace company would reasonably permit. When the plaintiff rested its case the learned circuit judge denied a nonsuit upon the ground that plaintiff’s case was one coming under the doctrine of res ipsa loquitur. It appeared from plaintiff’s evidence that the operation of the furnace plant, the conduct of the gas through the flues, the [106] method of preventing the escape of gas by means of the valve and the wet sand and ash pack, and the duty to turn off the gas from this boiler, were solely the obligations of the defendant furnace company and its employees, and that no one else had authority to act in the premises. However, after the defendants’ evidence had been introduced and the methods demonstrated, and when it appeared that these methods were the best known to the business by the president and the engineer, and when it also appeared that the valve had been properly shut and the pack had been placed over the same, and that little or no gas appeared to be in the boiler after the accident, the prima facie case of the plaintiff was fully met, and there was nothing left to submit to the jury. The burden of proof to establish the defendant’s negligence in all cases is upon the plaintiff, and, where the doctrine of res ipsa loquitur applies, does not shift. No evidence was attempted to be introduced on plaintiff’s part to show that a better method was in vogue, which, had it been testified to, would have raised a jury issue. No evidence was introduced to show that prior casualties had resulted from the actual method employed. Had such evidence been introduced, it might have devolved upon the defendant furnace company to resort to a scientific investigation in order to establish, if possible, a better method. It would appear almost as an irresistible conclusion that the death of Mullens was caused by the cumulative effect of the monoxide gas, resulting from his failure to resort to fresh air at more frequent intervals. The judgment of the lower court is affirmed. By the Court. — Judgment affirmed.