Borden v. Daisy Roller-Mill Co.

• Decision Date: 08 February 1898
• Citation: 74 N.W. 91,98 Wis. 407
• Parties: BORDEN v. DAISY ROLLER-MILL CO.
• Court: Wisconsin Supreme Court

98 Wis. 407

74 N.W. 91

BORDEN

v.DAISY ROLLER-MILL CO.

Supreme Court of Wisconsin.

Feb. 8, 1898.

Syllabus by the Court.

1. Where an experienced mechanic is injured by the slipping of a ladder on the floor where he was using it, such ladder being one of the ordinary tools in use in and about the premises, and selected by such mechanic on the occasion of such injury, it was error to instruct the jury that, as a matter of law, the master was negligent because of some defect in the ladder, which was open and obvious to any person paying reasonable attention thereto.

2. A servant is not ordinarily obliged to search for defects in instrumentalities furnished for his use; nevertheless, in the use of ordinary tools, he takes the risk of all defects therein which are open and obvious to a person of ordinary care, by reasonable attention to them as they are used.

Appeal from superior court, Douglas county; C. Smith, Judge.

Action by John F. Borden against the Daisy Roller-Mill Company. Judgment for plaintiff. Defendant appeals. Reversed.

Action for the recovery of compensation for personal injuries alleged to have been received by plaintiff while in the employ of defendant, by reason of a failure of duty on the part of the latter in respect to furnishing plaintiff with a reasonably safe ladder with which to do his work. The evidence showed, without dispute, that plaintiff had worked as a millwright in defendant's flour mill for several months before the injury; that he was a person of large experience in such work, and very familiar with the use of ladders of various kinds in and about millwright work; that at the time in question he was putting up some spouts or conductors, that required him to work on a gallery on which were located purifiers in operation; that for the purpose of reaching the point where the work was to be done, he was obliged to use a short ladder; that he found one standing upright against one of the machines, took and immediately placed it in position, and ascended it with a spout in his hand to do his work; and that while so engaged the ladder suddenly slipped on the floor, causing him to fall and entangle one of his feet in the belt on one of the machines, by reason of which one of his legs was broken, and he was otherwise injured. The alleged defect was want of spikes in the ladder to prevent its slipping on the floor. At the close of the evidence there was a motion to direct a verdict for defendant, which was denied. The court charged the jury that the ladder was defective as a matter of law, for want of spikes to prevent its slipping on the floor, and that if plaintiff, in the exercise of ordinary care, should have discovered such defects, he could not recover; otherwise that he was entitled to a verdict for compensation for his injuries. A verdict was rendered for plaintiff. Defendant's counsel moved the court to set the verdict aside and grant a new trial, which was denied. Judgment was thereafter entered in plaintiff's favor, and defendant appealed therefrom on exceptions duly taken.Ross, Dwyer & Hanitch, for appellant.

Crownhart, Owen & Foley, for respondent.

MARSHALL, J. (after stating the facts).

It is only when the evidence and all the reasonable inferences from evidentiary facts established thereby, are one way in respect to a fact in issue, that the trial court is warranted in taking it from the jury. Testing the evidence in the record by that familiarrule, the instruction given by the trial court to the effect that the ladder was defective and the defendant guilty of actionable negligence as a matter of law, unless plaintiff was guilty of contributory negligence, was a clear invasion of the province of the jury.

Whether a tool is defective, so as to render the person responsible for its reasonable safety for use liable for damages to an employé injured by some failure of duty in that regard, must be determined in the light of all the circumstances bearing on the question, and particularly, the right of such person to rely on the duty of such employé to exercise ordinary care for his own safety. A ladder is one of the most simple contrivances in general use. The danger attending such use is a matter of almost common knowledge, and is particularly within the knowledge of men engaged in such work as that in which plaintiff was employed when injured. Under all the circumstances, in view of the very simple character of such a tool; the ease with which plaintiff could have informed himself as to whether there were points in the bottom of it; the obvious dangers which would naturally suggest to such a person the necessity of familiarizing himself with its character in that regard before using it, and to guard against its tendency to slip on the floor, and many other things that might be mentioned,--clearly, the court was not warranted in finding, as a matter of law, that the officers and agents of the defendant, whose duty it was to act in its behalf, in the exercise of ordinary care, ought reasonably to have apprehended that some person, who might use the ladder in and...