Chapman v. Piechowski

• Decision Date: 29 April 1913
• Citation: Chapman v. Piechowski, 153 Wis. 356, 141 N.W. 259 (Wis. 1913)
• Parties: CHAPMAN v. PIECHOWSKI.
• Court: Wisconsin Supreme Court

153 Wis. 356

141 N.W. 259

CHAPMAN

v.PIECHOWSKI.

Supreme Court of Wisconsin.

April 29, 1913.

Appeal from Circuit Court, Waushara County; Byron B. Park, Judge.

Action by Walter Chapman against John Piechowski.Judgment for defendant, and plaintiff appeals.Affirmed.

Marshall and Barnes, JJ., dissenting.

The plaintiff brings this action to recover damages for injuries he received while in the defendant's employ doing work as an attendant about the defendant's threshing machine.

At the time of the injury the plaintiff was 22 years of age; he had lived and worked on the farm from youth, and had worked about threshing machine outfits as a common laborer.In July, 1911, the defendant employed him as a member of his threshing crew, doing work, as he directed, such as hauling water, tending the blower, and oiling and greasing the machine.

The defendant, prior to the date of the accident, had for years owned a threshing machine outfit, which he operated in Waushara county and other places.During the season of 1911he had purchased a new machine, and had provided it with an old-style self-feeder.This new machine had attached to it a conveyor spout, through which the partly threshed grain was conveyed from the rear of the machine and emptied into the cylinder chamber at a point directly over the revolving cylinders, so as to rethresh it.The use of the old feeder attachment required a change from the original opening, and the defendant cut an opening in the center of the cover over the cylinders, about 10 inches square.There were no guards placed about this opening.

On the 1st day of August, 1911, while the defendant was operating the machine and plaintiff was engaged about the same in performing his duties, he was directed by the defendant to make some repairs on the machine which required him to stand on top of the cover near this opening.When he started for this place, the machine was not running.After the plaintiff had made the repairs, the defendant requested him to remove a grease cup from the machine and give it to the defendant, who took it to the engine and filled it with oil.While there the engineer started the machine.When the defendant returned to the machine, he gave the plaintiff the filled grease cup and directed him to replace it.Plaintiff took the cup from the defendant and stepped over the hole to the other side of the machine.It appears that plaintiff, in order to replace this cup, knelt down on the cover above the revolving cylinders, with his feet in close proximity to the hole in question, and that while there in this position and so engaged his knee slipped, causing his foot to move and come in contact with the revolving cylinder, mangling, cutting, and bruising it in such a manner as seriously to injure it.The plaintiff alleges that the defendant negligently failed to securely guard the opening over the revolving cylinder, and that while plaintiff was exercising ordinary care he came in contact with the revolving cylinder and caused the injury complained of.

At the conclusion of the evidence the court, upon defendant's motion, directed a judgment of nonsuit in his favor.This is an appeal from such judgment.J. L. Kelley, of Princeton (Bouck & Hilton, of Oshkosh, of counsel), for appellant.

E. F. Kileen, of Wautoma, for respondent.

SIEBECKER, J.(after stating the facts as above).

The trial court held, as a matter of law, that a threshing machine with a steam-driven, revolving cylinder with steel teeth did not constitute a “place of employment” to perform labor, within the meaning of the provisions of section 1636j, Stats.The original statute forming a part of this section is chapter 549, Laws of 1887, entitled “An act to regulate factories, workshops and other places of employment.”Section 1 thereof regulates the number of persons that might be employed in any “* * * such factory, workshop or other place of employment,” to be determined by the board of health.Section 2 provided that stationary vats, pans, etc., were to be surrounded with proper safeguards, and that “all belting, shafting, gearing, hoists, flywheels, elevators and drums of manufacturing establishments so located as to be dangerous to employés when engaged in their ordinary duties shall be securely guarded or fenced so as to be safe to persons employed in any such place of employment.”Section 3 prescribes penalties for failure to comply with the provisions of the act, and provides, “* * * Every day's failure after the first conviction shall constitute a separate offense, after due notice by the state factory inspector.”This was amended in the Revision of 1898 by changing the phraseology thereof; but the amendments did not affect the substance of the provisions as they existed, nor do the amendments indicate an intent to extend the provisions to include places of employment other than such places as were embraced in the existing statute.This is plainly indicated by the context of the law and the part prescribing the penalties for its violation.As to the last feature, it was enacted: “Any person or corporation which shall neglect for thirty days after the receipt of written notice from the state factory inspector to provide a suitable place for the persons employed by him to work in or who shall fail to make and maintain such safeguards as this section requires and as said inspector shall specify * * *” shall forfeit the specified amount for each offense.

The provisions of section 1636jj does not enlarge the scope of the provisions of the preceding section.This point was urged upon the court in the case of Schmitt v. Seefeld, 139 Wis. 459, 121 N. W. 136, and it was there held that section 1636jj does not modify the preceding one, so as to enlarge its scope or meaning, and that this section refers only to such machinery as the preceding one embraces.

From a consideration of the statutes in all their parts, in the light of the manifest object of the regulation of places specifically enumerated therein and the duties imposed in relation thereto on boards of health and the factory inspector to secure effective enforcement of the statutes, it is apparent that the legislative intent was to protect the health and safety of employés employed in factories, workshops, and manufacturing establishments, and that the phrases in the statutes, “or other places where labor is performed,” and, “every place where persons are employed to perform labor,” in the connection they are used, were intended to embrace places of the general character as those enumerated, and that the word “place” following the particular words describing the subjects to which the regulation is applied was not intended to extend to all places whatsoever where persons are employed to perform labor.The whole context of the statute suggests that the Legislature thought of particular classes of places where employés are surrounded by conditions such as are described, namely, places which to some extent inclose the machinery and the employés, and that it was not intended that the regulation should include all places without restriction as to surrounding conditions and environment.We are of the opinion that the phrases, “or other place where labor is performed,” and, “every place where persons are employed to perform labor,” in this statute were not intended to include a threshing machine as a “place,” within the meaning of this law.The plaintiff confessedly planted his rights to a recovery on these statutes, and hence he has no case against the defendant.

The judgment appealed from is affirmed.

MARSHALL, J.

I must dissent from the conclusion as to the meaning of section 1636j of the Statutes.In the light of modern needs and thought, legislative efforts to vitalize the same by written law and the judicial duty, all feel, to give literal effect to legislative language to that end,--in the absence of manifest ambiguity and that a reading along restrictive lines will most likely respond to the wishes of the lawmakers,--why should courts survey an enactment from a viewpoint disclosing to the judicial vision obscurity when from a different point of sight there is none, and then apply the rules for construction affording an easy pathway to a restrictive result?It was thought that Koepp v. Nat. Enam. & Stamp. Co., 151 Wis. 302, 139 N. W. 179, andKosidowski v. City of Milwaukee, 139 N. W. 189, marked a termination of the rather free use of such rules to discover the legislative purpose in remedial acts of the nature of the one in question.

The Legislature,--where the responsibility for changing the common rules seeming to be unsuitable to modern conditions was lodged by the people in the written Constitution,--either through want of knowledge of its power or want of appreciation of the necessity for use of it for more than half a century, so tardily responded to the demands of the times that it is not to be wondered at that the court dealt with the early efforts in that regard with such conservatism that ambiguity was seen, often, where it would not be now observed, and then by use of the rule, good in its place, that an act in derogation of the common law, if open to two or more meanings, should be construed most strongly against change and also by use of those instrumentalities, valuable in their places, noscitur a sociis and ejusdem generis, as to render changes slow and difficult largely because of a high appreciation of duty to effectuate the legislative purpose and not go beyond it.In this age of modern awakening, that conservatism has no proper place.Given place and activity, where reasonable necessity therefor does not exist, it tends to obstruct and give cast of unfriendliness or disposition to defeat when none exists in fact.

Modern progressiveism in deed as well as in thought, is the demand of the times and the general order of the day.Judicial appreciation of that was vindicated in the cases to which I have referred, both of which I...