Pern v. Wussow

129 N.W. 622, 144 Wis. 489, 1911 Wisc. LEXIS 291

• Court: Wisconsin Supreme Court
• Decided: January 10, 1911
• Status: Published

Opinion

Maeshall, J.

Tbe rule is invoked tbat, where there are many fellow-servants, some working in one department or feature of an industry, and some in others quite independent thereof, and the situation is such tbat tbe operation in one department is quite likely, from time to time, to create peril of personal injury to operators in some other part of tbe work, unless precautions according to some prescribed method are exercised to avoid it; ordinary care requires making and efficient promulgation of reasonably sufficient rules to tbat end. Counsel pin their faith to tbat, seemingly conceding tbat aside therefrom tbe judgment is right.

Tbe doctrine suggested was formulated into a reasonably definite rule in Polaski v. Pittsburgh, C. D. Co. 134 Wis. 259, 114 N. W. 437, as a logical deduction from many previous •adjudications in this and other courts. Promer v. M., L. S. & W. R. Co. 90 Wis. 215, 63 N. W. 90; Bain v. N. P. R. Co. 120 Wis. 412, 98 N. W. 241; Portance v. Lehigh Valley C. Co. 101 Wis. 574, 77 N. W. 875. It was subsequently applied to a situation definitely satisfying the particular calls thereof in Steber v. C. & N. W. R. Co. 139 Wis. 10, 120 N. W. 502.

The statement of significant circumstances requisite to •create the duty aforesaid, it seems, is sufficient to show, plainly, that it has no application to this case. Here, there were but a few employees, all working, substantially, together. The activities of the entire crew were confined within quite a narrow compass. All were in sight and hearing of each •other, with only a few steps from one extreme to the other of the operations. There was but one crew, and quite a small one, working at the single task of transferring the bank of earth to wagons, appellant being a handyman on the lower level, part of his work being to shovel the pieces of frozen earth and stones, which the shovel did not. take, into the wagons. There were no independent tasks, as in the Promer Case, where a car repairer was, from time to time, liable to be interfered with by the moving of cars by a switching crew, and the Polaslci Case, where members of a loading crew were required, from time to time, to leave their working places at one track and cross parallel tracks upon which cars were fre-' quently moyed. Such independent task of moving cars would naturally imperil the personal safety of those engaged in the other task. The advisability of special rules under such circumstances is plain. The situation in hand was not similar. It was more like that of a car-repair crew by itself, some working at one part of the car and some at another; some repairing one car and some another in the same vicinity.

The trial court ruled in harmony with the foregoing. Plaintiff seems to have been injured because of a danger with which he was perfectly familiar and which he voluntarily subjected himself to, a peiil incident to constantly changing conditions created by him and his associates, which all appreciated and understood they were expected to avoid by individual vigilance. The law applicable thereto is plain, as many times, illustrated in our decisions. The rule that the master must furnish his servant a reasonably safe place to work and use ordinary care to keep it constantly so, does not apply. Larsson v. McClure, 95 Wis. 533, 539, 70 N. W. 662; Osborne v. Lehigh Valley C. Co. 97 Wis. 27, 71 N. W. 814; Mielke v. C. & N. W. R. Co. 103 Wis. 1, 79 N. W. 22; Nix v. C. Reiss C. Co. 114 Wis. 493, 504, 90 N. W. 431. The court properly directed a verdict for defendant.

By the Court. — Judgment affirmed.