Fandek v. Barnett & Record Co.

150 N.W. 537, 161 Wis. 55, 1915 Wisc. LEXIS 169

• Court: Wisconsin Supreme Court
• Decided: May 18, 1915
• Status: Published

Opinions

Tbe following opinion was filed March 2, 1915:

Vinje, J.

Tbe trial court changed tbe answer to question 6 from “Yes” to “No” and exonerated tbe deceased from contributory negligence on tbe ground tbat bis conduct did not amount to contributory negligence but to an assumption of risk only. In bis opinion tbe judge says:

“Tbe evidence in this case bearing upon tbe conduct of tbe deceased resolves itself into tbe question of whether going into tbe spout to get tbe plates out, knowing and appreciating as be'did bow tbe upper spout was being supported, was an act of negligence on bis part contributing to bis injury, or conduct which, except for tbe statute, would have constituted an assumption of risk.”

We presume tbe latter part of tbe sentence means, conduct which, except for tbe statute, would have constituted tbe defense of assumption of risk, since obviously tbe statute could not abolish assumption of risk. It abolished tbe defense of assumption of risk and left the defense of contributory negligence. Sub. (1), sec. 2394- — 1, Stats. 1911. By so doing tbe legislature clearly recognized that there was a distinction between assumption of risk and contributory negligence or it would not have abolished tbe defense as to one and not as to tbe other. In 1913 tbe defense of contributory negligence was abolished as to employers baying four or more employees engaged in a common employment at tbe time of tbe accident. Par. '(3), sub. 1, sec. 2394 — 1, Stats. 1913. Tbe provision abolishing tbe defense of assumption of risk remains unchanged (see par. (1), sub. 1, sec. 2394 — 1, Stats. 1913), again showing that tbe legislature recognized tbe distinction between contributory negligence and assumption of risk. This court has frequently, and especially of late, bad occasion to state in various phraseology tbe fact that assumption of risk and contributory negligence may co-exist, or one may be present and tbe other absent. See Campshure v. Standard Mfg. Co. 137 Wis. 155, 118 N. W. 633; Dodge v. Kaufman, 152 Wis. 171, 139 N. W. 741; Van Dinter v. Worden-Allen Co. 153 Wis. 533, 138 N. W. 1016, 142 N. W. 122; Murray v. Paine L. Co. 155 Wis. 409, 144 N. W. 982; Janiak v. Milwaukee Western F. Co. 156 Wis. 544, 146 N. W. 788; Jahn v. Northwestern L. Co. 157 Wis. 195, 146 N. W. 1131.

By its answer to question 4 tbe jury found that by tbe exercise of ordinary care tbe deceased before climbing into tbe spout could have learned tbe manner in which tbe top spout was supported, and by its answer to question 5 it found that by tbe exercise of like care be could have comprehended tbe danger. Both these questions relate to contributory negligence. Tbe claim of counsel for plaintiff that they relate to assumption of risk is unfounded, for tbe court as well as counsel clearly understood that assumption of risk was not a defense and that no questions on that branch of tbe ease were needed or permissible. The answers to tbe two questions became practically immaterial by reason of tbe fact that ques-Hon 6 itself covers the whole field of contributory negligence. They only serve to emphasize the fact that no matter in what form the issue of contributory negligence was presented the jury found against plaintiff.

The correct practice, however, is to submit only one question on the subject of plaintiff’s contributory negligence, but the submission of two partly covering the field and one wholly so, where the answers are consistent, cannot be held prejudicial error.

Question 6 read, “Did any want of ordinary care on the part of Ernest Samida proximately contribute to produce his injuries?” Relative to it the court charged the jury as follows:

“You are instructed that it was plaintiff’s duty to exercise ■ordinary care for his own safety, and that the exercise of such •care includes the fair use of one’s faculties and opportunities of observation in order to learn and comprehend the dangers that are naturally incident to the situation. The deceased, Ernest Samida, is chargeable with the knowledge of such danger as he might know or comprehend by the exercise of such -ordinary care, and such as he could have discovered and ought to have discovered by the use of his sight and other senses in the exercise of such care. You will carefully consider the •evidence in this case bearing upon the inquiry as to whether Samida’s own conduct at the time of the injury lacked the exercise of ordinary care, — that is, whether or not he himself was negligent in the manner in which he attempted to take the plates out of the chute, and whether he ivas negligent in .going into the chute at all to take the plates out under the con■ditions then surrounding him, and 'whether he was negligent in any way that contributed proximately to produce his injury; and in considering this question you will also bear in mind the explanation and definition I gave you of the terms ‘proximate’ in connection with ‘proximate cause.’

“You are instructed that knowledge by the deceased that “the spout was not properly supported, if you find that to be a fact, and his continuance in the employment of the defendants up to the time of his injury, that such knowledge is not of itself evidence of a want of ordinary care on Ms part; but you will determine whether the deceased exercised ordinary care under the circumstances, under the instructions I have given you, in going into the spout in question at the time, in the-light of the situation as it then was, and in the light of his duties to exercise ordinary care for his own safety, and answer this question ‘Yes’ or ‘Uo’ as you find the facts to be;, and you are instructed that the burden is upon the defendants to satisfy you by a preponderance of the evidence that the deceased failed to exercise ordinary care, — that is, that your answer to this question should be ‘Yes,’ and you are instructed that if you are not so satisfied your answer to this, question will be ‘dSTo.’ ”

The question is the usual one submitted upon the issue of contributory negligence, and the instructions relative to it are also such as are customarily given under similar circumstances. The jury is ashed to measure the conduct of the deceased by that of an ordinarily careful and prudent man under the same or similar circumstances, and they are told that if it measures up to such conduct they must answer the question “ISTo,” otherwise “Yes.” It is difficult to perceive how the-jury could have regarded the question, under the charge given, as calling for the determination of any other fact than that of whether the conduct of the deceased at the time he was injured measured up to ordinary care. Indeed, the trial court does not change the answer to the question on the ground that the jury was misled in any way, but because the conduct of' the deceased, as shown by the evidence, establishes as a matter of law assumption of risk- and not contributory negligence.

The testimony on this branch of the casé is practically undisputed. The evidence shows that when the crew went to dinner the top spout rested upon the one below it as described in the statement of facts and it was in the same position when they'returned after dinner. The witness Zasada so testifies and it is not disputed. The deceased went to work and took out the plates and washers in the two tiers first piled and then. went into tbe top spout of the tier just completed before dinner and removed the plates and washers from it. He then climbed down and crawled into the one below it, and it was while he was in the act of removing the plates and washers from the second spout from the top that the upper one suddenly fell upon him. It fell like a shot, the witnesses say, without any grating noise as though slipping upon its bearings. The deceased, whose testimony was taken, says he did not look at or examine how the upper spout was supported before he crawled into the one below it, though he could have •easily done so had he taken just a glance at it, as it was resting about level with his eyes.

The workmen were here creating a place of employment by the piling up of these spouts. Its safety depended largely upon the care exercised by them in doing their work. It was •quite evident to any of them that a spout like the one in question unless securely supported would constitute a deadly trap for any one in the spout below, as the least jar or disturbance might cause it to fall. It was no doubt owing to this fact that the jury found the deceased negligent in crawling into the second spout without looking to see how the upper one was supported — especially since he had just been up into it .and had taken plates and washers from it. He testifies that he did not jar it in so doing, neither did he do so when he was in the one below and the upper one fell. In this he is corroborated by Becker, who worked with him at the time he was injured. He said neither he nor the deceased disturbed the upper spout. So the jury must have found that the upper ■spout, at the time the deceased crawled under it, was so insecurely supported that an ordinary inspection would have disclosed the fact, and that being chargeable with the knowledge of such fact it was negligence to crawl into the spout below as the deceased did.

This brings us to the question whether contributory negligence can consist in serving under a risk that is known to the employee or which by the exercise of ordinary care he should have discovered, or whether such service is in all cases nothing-more than an assumption of risk.

Contributory negligence is established when it is shown, that plaintiff failed to take such precautions for his own safety as a person of ordinary care would usually take under the same or similar circumstances. It may take the form of’ an affirmative act or of a failure to act. It may consist in. an act or in a failure to act that creates a new risk or that enhances or assumes an existing one. If plaintiff serves, under hazards incident to the employment no greater than those which ordinarily careful and prudent men usually serve under, then injury from such hazard alone is through assumption of risk and not through contributory negligence. But if plaintiff knowingly or ignorantly through a want of ordinary care serves under a risk that an ordinarily careful and prudent man similarly situated would not usually serve under, then such conduct is contributory negligence and not assumption of risk. In other words, the assuming of such risks as ordinarily careful and prudent men similarly situated usually assume is within the field of assumption of risk whether assumed knowingly or ignorantly. But the assuming of such risks as are more hazardous than those which ordinarily careful and prudent men similarly situated usually assume constitutes contributory negligence. And it is immaterial whether the risk is assumed knowingly or ignorantly through a want of ordinary care. It was no doubt with this-idea in mind that the supreme court of the United States in. Schlemmer v. B., R. & P. R. Co. 205 U. S. 1, 12, 27 Sup. Ct. 407, speaking of assumption of risk and contributory negligence, said: “But the difference between the two is one-of degree rather than of kind.” In that case upon the second appeal (220 U. S. 590, 31 Sup. Ct. 561) it was held that the going in between cars by a brakeman to couple them was-not so hazardous as to be per se contributory negligence; that bis going in was merely an assumption of risk; but tbe finding of tbe state court that plaintiff was guilty of contributory negligence in tbe manner in wbicb be attempted to make tbe coupling after be was in between tbe cars was sustained. After defining assumption of risk and excepting tberefrom “such obvious dangers that no ordinarily prudent person would incur them,” tbe court says: “Contributory negligence, on tbe other band, is tbe omission of tbe employee to use those precautions for bis own safety wbicb ordinary prudence requires.” Page 596.

And in Seaboard A. L. R. Co. v. Horton, 233 U. S. 493, 504, 34 Sup. Ct. 635, it used this language:

“Contributory negligence involves tbe notion of some fault or breach of duty on tbe part of tbe employee, and since it is ordinarily bis duty to take some precaution for his own safety when engaged in a hazardous occupation, contributory negligence is sometimes defined as a failure to use such care for bis safety as ordinarily prudent employees in similar circumstances would use. On tbe other band, tbe assumption of risk, even though tbe risk be obvious, may be free from any suggestion of fault or negligence on tbe part of tbe employee.”

As long as tbe employee was solely responsible for tbe results of an assiimption of risk it was not necessary to distinguish between those cases in wbicb be was defeated by assumption of risk and those in wbicb contributory negligence, barred bis recovery. With this idea in mind tbe court in Knauer v. Joseph Schlitz R. Co. 159 Wis. 7, 149 N. W. 494, speaking of assumption of risk, said:

“Being purely a voluntary act, it does not involve any violation of duty by the employee, for one is at liberty to subject himself to danger if be sees fit, and, if be does so, in tbe absence of some written law to tbe contrary, it is at bis own risk.”

But when tbe act of an employee who subjects himself.to a hazard is at tbe expense of tbe employer, a duty upon bis part arises not to unnecessarily assume a risk so.great that an accident may reasonably be expected to follow. To do so is negligence, because it is failing to take that precaution for his own safety that ordinarily prudent employees usually take under similar circumstances.

The abolition of the defense of assumption of risk does not absolve the employee from the duty of exercising ordinary care for his own safety. And whenever his failure to do that causes his injury in whole or in part he is guilty of contributory negligence, irrespective of whether the negligence consists in an omission to discover a danger that ought to be discovered and shunned, or in a careless or bungling manner of doing an act otherwise reasonably safe, or in voluntarily assuming a risk that an ordinarily careful and prudent man similarly situated would not usually assume. Negligence exists when conduct does not measure up to the standard of ordinary care. The defense of assumption of risk abolished by the statute related to such risks as could be assumed within the field of ordinary care. When their assumption amounted to negligence the defense under the law in force when this injury occurred was available. There is mo other rational line of demarcation.

Since ordinarily careful and prudent men usually serve under ordinary risks, it follows that in order to constitute contributory negligence the risk voluntarily served under must be more or less imminent or grave in its nature. It must be a hazard that suggests danger to such an extent that a person of ordinary care would not usually serve under it. Goltz v. M., L. S. & W. R. Co. 76 Wis. 136, 44 N. W. 152; Erdman v. Ill. S. Co. 95 Wis. 6, 69 N. W. 993. Nothing herein said conflicts with what was decided in Besnys v. Herman Zohrlaut L. Co. 157 Wis. 203, 147 N. W. 37, where the court held that it was the legislative intent as expressed in secs. 2394 — 48, 2394 — 49, Stats. 1911, to impose upon the employer a liability for all injuries resulting from the hazards incident to the methods, processes, and conditions of the business furnished, permitted, or suffered by him, however obvious such hazards might be to the employee. Obvious means “Easily discovered, seen, or understood; readily perceived by the eye or the intellect; evident; as, an obvious meaning; an obvious remark; an obvious defect.” Webster, Internat. Diet. So obvious risks or dangers of an employment are those which are apparent in the exercise of ordinary observation and which are disclosed by the ordinary use. of the eyes and other senses. 6 Words & Phrases, 4896 and cases cited. It is not the ease with which a hazard is discovered that tends to make serving under it a want of ordinary care, but the imminence of serious injury from it. And when such imminence of serious injury is so great that an ordinarily prudent man would not under the same or similar circumstances serve under it, the voluntary doing so constitutes contributory negligence. The question in the Besnys Case was whether the risk assumed was so great as to constitute contributory negligence as a matter of law. The majority of the court held that it was not. Our court has frequently spoken of assumption of risk as a species of contributory negligence, and so it is in many if not in all cases. As long as both were a complete defense no occasion arose for making a sharp distinction between them. Indeed, no sharp distinction always exists, for negligent and nonnegligent acts, shade into each other and the judgment of men differs as to when they pass from one field into the other. So it is in most cases primarily a question for the jury to say in what field the questioned conduct lies, in that of a mere assumption of risk or in that of negligence, bearing in mind,, however, that it may enter the latter field through the former as well as otherwise.

Under the evidence, the answer to the question submitted, and the instructions relative thereto, it must be held that the jury found the deceased guilty of contributory negligence and not of assumption of risk, and tbat there is evidence to sustain the finding. The trial court, therefore, erroneously changed the answer to question 6 (numbered I in the verdict rendered) from “Yes” to “No.”

By the Court.- — Judgment reversed, and cause remanded with directions to reinstate the specified answer of the jury and to enter judgment for defendant upon the verdict as rendered.