Colson v. Rule

• Decision Date: 15 January 1962
• Parties: Gerald COLSON, Respondent, v. Eldon RULE, Appellant.
• Court: Wisconsin Supreme Court

Page 21

113 N.W.2d 21

15 Wis.2d 387

Gerald COLSON, Respondent, v. Eldon RULE, Appellant.

Supreme Court of Wisconsin.

Jan. 15, 1962.

Frank D. Hamilton, Dodgeville, for appellant.

Kramer, Brown & Nelson, Fennimore, for respondent.

CURRIE, Justice.

While the verdict contained a question which inquired as to plaintiff Colson's contributory negligence, together with an accompanying question on causation, it contained no question on assumption of risk by Colson. The learned trial court had denied a timely request by defendant's counsel that the verdict contain a question on assumption of risk. One of the reasons advanced for refusing to submit such a question was that the concurring opinions in Baird v. Cornelius (1961), 12 Wis.2d 284, 107 N.W.2d 278, had sounded a warning that assumption of risk in cases of this kind was about to be abolished in Wisconsin. The instant appeal directly raises the issue of whether that vestige of the doctrine of assumption of risk, once so prevalent in master and servant cases, which has been retained in the field of farm labor, should now be abolished by this court.

In McConville v. State Farm Mutual Auto. Ins. Co., 113 N.W.2d 14, the court has abolished assumption of risk as a defense separate and apart from contributory negligence in automobile host-guest cases where there has been no express consent to assume a particular risk. The policy reasons for so doing are fully set forth in the opinion in that case. Equally strong reasons of policy exist for achieving the same result in master and servant cases involving farm labor.

In most situations, it seems highly unrealistic to hold that a farm laborer has assumed the risk of a dangerous situation arising from his use of a defective tool, device, or piece of machinery supplied by his employer. It is inherent in the doctrine of assumption of risk that the person to whom it applies has a freedom of choice and has exercised it. If an employee were to refuse to make use of defective equipment, when directed to do so by his employer, this action would likely result in his discharge. Few farm laborers are likely to defy the express commands of their employers in such a situation.

A further reason for abolishing assumption of risk as an absolute defense is that it tends to immunize those employers from liability who are the greatest transgressors in providing safe conditions of work for their employees. This is well illustrated by Haile v. Ellis (1958), 5 Wis.2d 221, 92 N.W.2d 863, 93 N.W.2d 857, where a farm laborer was furnished a defective cornpicker to operate, the rollers of which frequently became clogged with cornstalks. This court held that if the cornstalks clogging the machine could not be removed by the employee except while the picker was operating, he would be guilty of assumption of risk in so removing the stalks. On the other hand, he would only be guilty of contributory negligence and not assumption of risk, when he removed the clogging stalks while the power was operating the moving parts, if it was possible to have so removed them with the power shut off. Clearly, the employer in such a situation would be more blameworthy if he supplied a defective cornpicker that required the employee to continue to have the moving parts operate in order to remove clogging stalks, than he would if it were possible for the employee to remove such stalks while the power was shut off.

Another reason for changing the existing rule is the difficulty in drawing the dividing line between assumption of risk and contributory negligence. In the Haile Case, it was held that assumption of risk in the employer-employee relationship is the mere passive subjection by the employee to the risk of injury inherent in known defective conditions, whereas contributory negligence involves an act or omission by the employee tending to add new danger to his situation. On the other hand, in Knauer v. Joseph Schlitz Brewing Co. (1914), 159 Wis. 7, 12, 149 N.W. 494, it was stated that 'in contributory negligence there is inadvertence, strictly so-called, in stepping aside from a legal duty one owes to himself, while in assumption of risk there is a voluntary subjection to the risk as an express or implied incident of the contract.' The attempted distinction between assumption of risk and contributory negligence is highly technical and in many fact situations it is very difficult for trial courts to distinguish between the two. Yet, if assumption of risk is an absolute defense under the comparative negligence statute, while contributory negligence is not, it is essential that trial courts attempt to define the same in instructing juries where assumption of risk is pleaded as a defense. That confusion exists in past decisions of this court as a result of failure to distinguish between the two concepts is well illustrated by the following extract from Campshure v. Standard Mfg. Co. (1908), 137 Wis. 155, 159, 118 N.W. 633, 634:

'There is also Darcey v. Farmers' L. Co., 87 Wis. 245, 58 N.W. 382, where the assumption of risk was described as 'a form of contributory negligence'; Hennesey v. C. & N. W. R. Co., 99 Wis. 109, 74 N.W. 554, where it is spoken of as 'a form of contributory negligence,' and also as 'a specific phase of contributory negligence'; Hazen v. West Superior L. Co., 91 Wis. 208, 64 N.W. 857, where it is described as 'a species of contributory negligence,' 'equivalent in legal effect to contributory negligence.' To the same effect is Peterson v. Sherry L. Co., 90 Wis. 83, 62 N.W. 948. In Dugal v. City of Chippewa Falls, 101 Wis. 533, 77 N.W. 878, it is said to be 'only one specific phase of contributory negligence.' Similar expressions may be found in Koepcke v. Wis. B. & I. Co., 116 Wis. 92, 92 N.W. 558, Johnson v. St. P. & W. C. Co., 126 Wis. 492, 105 N.W. 1048, and doubtless elsewhere.'

We believe there is much justification for Mr. Justice Marshall's comment in Powell v. Ashland Iron & Steel Co. (1897), 98 Wis. 35, 41, 73 N.W. 573, 574, that: 'It is considered here, notwithstanding authority to the contrary, that no necessary distinction exists between the two [assumption of risk and contributory negligence]. Such distinctions are indulged in far too much and lead only to confusion and uncertainty in a most important branch of jurisprudence.'

This court recently had occasion to point out that conduct which may be termed assumption of risk and conduct which constitutes contributory negligence are not mutually exclusive. Meyer v. Val-Lo-Will Farms (1961), 14 Wis.2d 616, 621, 111 N.W.2d 500. In that case we quoted this statement from Scory v. La Fave (1934), 215 Wis. 21, 28, 254 N.W. 643, 646:

'* * * the assuming of such risks as ordinarily careful and prudent men similarly situated usually assume is within the field of assumption of risk, whether assumed knowingly or ignorantly. But the assuming of such risks as are more hazardous than those which ordinarily careful and prudent men similarly situated usually assume constitutes contributory negligence.' ²

It seems incongruous that an employee should be barred from recovering in negligence against his employer because of any act on the employee's part which an ordinarily careful and prudent man similarly situated would have performed. There would seem to be no moral...