Kramer v. Willy

85 N.W. 499, 109 Wis. 602, 1901 Wisc. LEXIS 331

• Court: Wisconsin Supreme Court
• Decided: March 19, 1901
• Status: Published

Opinion

Dodge, J.

The case made by plaintiff’s evidence, though accorded the most favorable inference, clearly fails to show any negligence by defendants in ascertaining and maintaining the safety of the boiler which the deceased operated. Due care in its original purchase is affirmatively shown. Erequent and careful inspection by the engineer in charge is also proved up to the time when it passed into the care of the deceased. There is no evidence as to such precautions during the four months of his control, but such omission cannot adversely affect defendants, both because negligence must be proved affirmatively, and because, if there were omission of usual precaution in this respect, it would be the negligence primarily of the plaintiff’s intestate. But, indeed, there is no claim of any negligence during any period preliminary to the discovery of the leak on the Saturday preceding the Tuesday of the explosion. Of this leak the defendants are not shown to have had any knowledge except such as they derived from the deceased, who was in charge of the apparatus, a man of mature years, who had, to the knowledge of defendants, between four and five years’ experience in operation of boilers either as fireman or engineer, and who, by accepting the latter position, had asserted his own qualifications. Upon his notification, the defendants employed a boiler repairer of standing and repute to do what was necessary, under décedent’s directions. It is difficult to conceive any greater care which they could have exercised for their employee’s safety, except, perhaps, to discharge him from the employment in proximity to a leaking boiler.

But plaintiff contends that at this point the boiler repairer became the representative of the employer, and that he was guilty of omission to do all that could have been done to ascertain whether there was other defect in the boiler than mere opening of seams; insists that he might have.cut away the bolts, and examined the steel plates where they lapped over each other, and might have applied the water-pressure test, either of which would have disclosed the crack or fissure which existed. Plaintiff’s witnesses testify that customarily nothing of the sort would be done if calking proved effective to stop the leak, and that, if any suspicion of weakness were justified, the .usual precaution would be to test the boiler. The repairer, Fairbanks, excluded responsibility for the leak of any break in the iron by careful visual examination and by the hammer test, and he effectually stopped the leak by calking. Under the evidence, he might consistently with due care have stopped there, but he did not. He submitted to the plaintiff’s intestate the question whether he should make a test of the boiler, and was by him directed not to do so. It appears conclusively by plaintiff’s testimony that this conduct was not negligent; that it was the usual and customary caution under the circumstances.

Counsel, however, urges that we must hold as matter of common knowledge that the omission of the pressure test is negligence, since it might have disclosed the weakness. This contention, if sustained, must equally defeat plaintiff’s recovery; for her intestate voluntarily accepted the risk of such omission with full knowledge of its occurrence. To him, a. trained engineer, is certainly to be imputed as mucb knowledge of the necessity or propriety of such test as can be assumed by a court by virtue of its imputed acquaintance with merely the common knowledge on the same subject. If we can know that such omission was negligence, certainly he must have known it and must be chargeable with assumption of any risk so occasioned. To summarize the situation: The evidence fails to disclose any omission by the defendants of the precautions usual and customary, and, as to the only omission of any precaution, shows affirmatively that it occurred with the knowledge and assent of the plaintiff’s intestate. Under rules of law, now so trite as to call for neither reiteration nor citation of authority, the defendants cannot be held liable, and judgment of nonsuit was proper.

By the Court.— Judgment affirmed.