Thompson v. Edward P. Allis Co.

62 N.W. 527, 89 Wis. 523, 1895 Wisc. LEXIS 204

• Court: Wisconsin Supreme Court
• Decided: March 5, 1895
• Status: Published

Opinion

WiNsnow, J.

Some complaint is made by the appellant of the submission of questions numbered 6 and 6a to the jury. It is said that the statute providing for the covering of all gearing so located as to be dangerous to employees when engaged in their ordinary duties (S. & B. Ann. Stats, sec.' 16367’) does not apply to an employee who is engaged in work upon the gears themselves, but to the case of other employees who in performing their duties are in danger of being caught by the gears, but who are not employed directly upon or about them. We are unable to adopt such a narrow view of the statute. To do so would certainly go far to nullify the evident purpose of the law, and leave the mischief which the law is plainly framed to remedy well nigh as great as before. In this view of the law, there was certainly testimony which justified the submission of these questions to the jury.

■The appellant’s principal contentions are: Fwst, that the evidence shows the plaintiff to have assumed the risk and to have been guilty of contributory negligente; second, that the court erred in refusing to give to the jury certain instructions.

1. Upon the first contention reliance is placed upon the case of Burnell v. West Side R. Co. 87 Wis. 387. There are points of similarity in the two cases, but there are also well-defined differences. In that case it appeared by the ■complaint that the plaintiff was instructed in the duties of running the electric car and cleaning the machinery by which he was injured during a period of eight days. According to the plaintiff’s story in the present case, he was set to work on the boring machine, without experience, without instruction, and without warning, and we think it impossible to say, under the evidence, that he must be held as matter of law to have appreciated the risk and so assumed it. Nor can it be said that the evidence conclusively shows him to have been guilty of contributory negligence. In view of the circumstances shown by the evidence, these ■questions were both properly questions for the jury.

2. By the eighth and ninth questions, the jury were asked whether the plaintiff had been sufficiently instructed or warned of the risk to which he was exposed. In connection with these questions, the court very properly instructed the jury, in substance, that if he had received instructions or-warnings sufficient to put him on his guard and enable him to comprehend the risk of being caught in the gears if he had used the intelligence which he possessed, then he must be presumed to have comprehended and appreciated the risk of the injury which he suffered. In addition to this instruction, the defendant requested the following instruction, which was refused: “ "While it is the duty of the employer to give proper warnings and instructions to his employees to enable them to understand and comprehend the danger of the employment, still it is not necessary that the employer should anticipate every possible exigency by which the employee may he injured¡ but if the employer gives to-the employee, in general terms, such knowledge that the-machinery with which or the locality in which he is at work is dangerous, so that the employee’s attention is called and attracted to that fact, and the employee ought, by the exer- • cise of his senses and the intelligence with which he is possessed, to comprehend the dangers of his employment, then he must be held to have sufficient knowledge and experience to comprehend and appreciate the risk of his employment.” This instruction should have been given. It is manifestly impossible for an employer to anticipate in advance every possible risk or accident which may happen in the use of a given machine, and if he gives such general instructions and cautions as will enable the employee, by the use of his intelligence, to comprehend the dangers which threaten him in his -work, he must be held to have discharged his duty,. This idea, that the employer is not bound to anticipate all possible accidents and risks, was not contained in the charge-given by the court, but it was aptly expressed in the instruction refused. We think the refusal was error.

It was argued by the respondent that, because the jury had found that the gearing was of such a character that the-law above mentioned required it to be covered, the defense of contributory negligence could not be made, and that the defendant was absolutely liable for an injury resulting from, failure to cover the gearing. We cannot so hold. Under a very similar statute, requiring the fencing of railroads, the doctrine contended for was denied. Curry v. C. & N. W. R. Co. 43 Wis. 665. The decision in Quackenbush v. W. & M. R. Co. 62 Wis. 411, under a later statute, which created an absolute liability for injuries occasioned, “ in whole or in part,” by the failure to fence, is plainly not applicable to the present case.

By the Gowrt.— Judgment reversed, and action remanded. for a new trial.