Baker v. Janesville Traction Co.

The following opinion was filed February 10, 1931: Fairchild, J. The principal question raised by the demurrer is one of pleading. The safe-place statute (sec. 101.06) has been considered, analyzed, and upheld in a number of cases. Cases cited in Wis. Anno. Stats. 1930, p. 650 et seq. The question here is whether or not the allegations of the complaint show that the defendant has violated a duty placed upon it by.the statute which requires a place of employment to be safe and the employer to adopt and use such methods as are reasonably adequate to render the employment and place of employment safe. A mere general allegation that a place is unsafe without averment stating in what respect the place was unsafe, is a mere conclusion of law and insufficient as a matter of pleading to raise the issue. Emond v. Kimberly-Clark Co. 159 Wis. 83, 149 N. W. 760; Peake v. Buell, 90 Wis. 508, 63 N. W. 1053. In this case the pleader quite evidently realized the necessity of such averments being made, the allegation in that respect being, “and that notwithstanding said defendant street-car company failed to provide plaintiff at that terminal with a reasonably safe place of employment, which could have been done by the creating of a safety zone excluding automobiles from traveling over same while plaintiff was about his work on the street for the change of trolleys, and further failed to provide him with some one then and there to be stationed to watch and warn him, while thus engaged, of the approach and passing of automobiles, and further failed to provide other adequate means or devices for safeguarding plaintiff.” It is apparent from a careful survey of the situation that a street railway using the public streets cannot station watchmen at every place where danger may be in the form of a [455] swiftly passing automobile, or supply barriers or other agencies for innumerable points where by accident or design trolley contacts are broken and remade. The term “safe” or “safety” means such freedom from danger to life, health, safety, or welfare of the employees as the nature of the employment and place of employment will reasonably permit. In the case of Miller v. Paine Lumber Co. 202 Wis. 77, 227 N. W. 933, 230 N. W. 702, the duty to provide means of warning the employee existed because the employee there, in order to perform his work, was necessarily so engaged that it was impossible for him to see obstructions and points of interference that made a likelihood of his being injured great enough to reasonably require such protection to render the employment safe. Here the employee, at the time of his injury, was to a very large extent making his own place of employment. He was free to act for himself and was as safe as any other user of the street. He was not engaged in an occupation which required - such constant attention as to prevent him from noticing his surroundings, nor was he placed in such a situation by reason of his occupation as to make it difficult for him to see all that was going on about him, nor did the pursuit of his work take from him the ability to move about freely. In fact he was in full control of his own movements with all the opportunity for observation of which any member of the public could avail himself. To require a street-car company to protect its employees under such circumstances by stationing watchmen and guards would multiply the risks and hazards of the employment rather than diminish them. It is also apparent from the allegations of the complaint that at the place in question the defendant had no control over the street and no right to place any obstructions therein. Downs v. Northern States Power Co. 200 Wis. 401, 228 N. W. 471. So that in the consideration of the allega [456] tions of the complaint it appears that a failure of the defendant to perform its duty is not sufficiently alleged to create an issue. Certainly the framers of the statute did not intend that questions of this kind were to be submitted to a jury so that they might speculate upon possible or fanciful means of creating a place of safety, but, on the contrary, that those who allege a violation of the statute must show in what respect the person charged has failed to perform his duty. Hahn v. Rothstein, 174 Wis. 381, 182 N. W. 983. There appears to us to be another difficulty. After describing the place where the accident occurred, the complaint continues: “That the plaintiff had just pulled down the trolley which was used while the street car was traveling north and was about midway between the rear and front end of the street car, and on his way to re-enter the street car at the end where the door was left open for and while in the actual discharge of a passenger, through the lane, when defendant Tormey drove his automobile north through that lane at such an unusually rapid rate of speed, and in excess of forty miles an hour, as to place plaintiff in immediate danger of injury, and the plaintiff, in order to escape said injury, hastily jumped to the east and behind the parked automobile, and at the very time and place, and immediately behind defendant Tormey, defendant Tegt, also driving his automobile north at an unusually rapid rate of speed, and in excess of forty-five miles an hour, and by reason thereof he being unable to stop his automobile, to avoid a collision with defendant Tormey’s automobile, notwithstanding both defendants Tormey and Tegt had a clear view of plaintiff for a sufficient length preceding their approaching the lane, in which to stop, swerved his automobile to the east of defendant Tormey’s car and crushed plaintiff against the parked car, causing him the injuries hereinafter alleged.” Here are allegations which show that the plaintiff’s injuries were proximately caused by the reckless and unlawful conduct of the defendants Tormey and Tegt. If the defendants Tormey and Tegt were placed under no restraint [457] by the terms of a positive statute, the complaint certainly points out no “methods and processes” which would have served effectually to protect plaintiff. Plaintiff’s injuries in this case were not caused by any failure of the defendant to perform its duty under the statute, but were immediately and proximately caused by the unlawful acts of the other defendants, according to the allegations of the complaint. The statute does not require an employer to protect his employee against wilful, unlawful, or even negligent, acts of others. Wood v. General Railway Signal Co. 161 Wis. 71, 151 N. W. 269. It relates to the premises and the conduct of the business of the employer and to the control of those methods and processes which are used in the employer’s business over which he has a right of control and does not make the employer liable for the unlawful acts of third persons over whom he has no control or right of control. By the Court. — Order of the circuit court reversed, and the cause remanded for further proceedings according to law. The following opinion was filed February 13, 1931: