Fandek v. Barnett & Record Co.

• Decision Date: 19 March 1915
• Citation: 150 N.W. 537,161 Wis. 55
• Court: Wisconsin Supreme Court
• Parties: FANDEK v. BARNETT & RECORD CO.

161 Wis. 55

150 N.W. 537

FANDEK

v.BARNETT & RECORD CO.

Supreme Court of Wisconsin.

March 2, 1915.

Concurring Opinion March 19, 1915.

Appeal from Circuit Court, Ashland County; G. N. Risjord, Judge.

Action by Friedrich Fandek, executor of the will of Ernest Samida, deceased, against the Barnett & Record Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded, with direction to reinstate specified answer of jury and enter judgment for defendant upon the verdict as rendered.

Siebecker and Kerwin, JJ., dissenting.

Action for personal injury originally begun by Ernest Samida to recover damages for injuries sustained by him on January 21, 1913, while employed by the defendant in unloading and piling spouts belonging to an ore dock that was being repaired. On March 8, 1913, Samida died as a result of his injuries, and the action was thereafter revived in the name of plaintiff, as executor of the will of Samida.

The spouts which the deceased assisted in unloading were about 30 feet long, 2 feet deep, 4 feet wide at the smaller end and 11 feet wide at the larger end. At the large end they were practically flat on the bottom, and at the smaller end they were somewhat circular. Each spout weighed about 2 tons. On the under side there were, at intervals, ribs of steel about one-half inch thick and 4 inches wide, set edgewise onto the spouts. These spouts were being removed from the dock and piled in the ore yard while repairs were being made on the dock. They were loaded onto flat cars at the dock in sets of two in height with timbers placed across the ends or laid in the spout at an angle from the side to prevent them from nesting together. Various plates, burs, and washers that were used in attaching them to the dock were left in them. In the ore yard four spouts were first laid upon the ground side by side and adjacent to the track. Then by means of skids and block and tackle each set of two spouts was slid from the flat car onto the spouts already placed, so that a pile, when completed, consisted of four tiers, each three spouts in height. After the spouts were piled, and while waiting for the next car, the crew were required to climb and crawl into the spouts and remove the plates, burs, and washers left in them. The plates were about 3 feet by 3 1/2 feet, and weighed about 150 pounds each.

Just before the dinner hour on January 21, 1913, the crew had completed three of these tiers, and the tenth spout was on the ground ready for two more spouts to be placed, completing the pile. The top spout in the tier last placed was supported by a timber across the small end. At the large end there was a 4x4 inch timber set diagonally in the spout on the left-hand side when looking toward the small end, and on the other side the spout rested on the one below; the point of contact being the first rib at about 1 or 1 1/2 inches from where the rib turned up the side of the spout.

Upon returning from dinner plaintiff removed the plates and washers from the first two tiers, and then climbed into the top spout last placed and removed the plates, burs, and washers, and then crawled into the middle spout of the same tier. He had removed one plate, and was pushing on the second, when his partner, Becker, came along and asked if he wanted help. Becker took hold of the front end of the plate and was pulling when the upper spout fell and crushed plaintiff.

The jury found: (1) That the spout that injured Samida was not so supported at the time of the injury as to give reasonable protection to the life and limb of a person employed as Samida was at the time of the accident; (2) that such failure to have the spout so supported was the proximate cause of the injuries to the deceased; (3) that the defendants, in the exercise of ordinary care, ought to have anticipated before the injury occurred that the spout was not so supported as to give reasonable protection to the life and limb of a person engaged as deceased was at the time of the injury; (4) that the deceased, before climbing into the spout in which he was injured, could by the exercise of ordinary care have learned the manner in which the top spout was then supported; (5) that the deceased, before climbing into the spout in which he was injured, could by the exercise of ordinary care have comprehended the danger of the spout falling upon him; (6) that a want of ordinary care on the part of Samida proximately contributed to his injuries; (7) that the defendants did not furnish Samida at the time he was injured a place of employment in which to perform his duties as free from danger to life, health, and safety of the employés engaged in the employment that Samida was at the time of the injury as the nature of the employment reasonably permitted; (8) that the failure of defendants to furnish such place of employment was the proximate cause of the injuries to the deceased; and (9) damages, $1,366.25.

The court changed the answer to question 6 from “Yes” to “No.” Upon the verdict so changed judgment was entered for plaintiff, and the defendant appealed.

Bundy & Wilcox, of Eau Claire, for appellant.

Holland & Lovett, of Park Falls, and W. Stanley Smith, of Ashland, for respondent.

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

The trial court changed the answer to question 6 from “Yes” to “No,” and exonerated the deceased from contributory negligence, on the ground that his conduct did not amount to contributory negligence, but to an assumption of risk only. In his opinion the judge says:

“The evidence in this case bearing upon the conduct of the deceased resolves itself into the question of whether going into the spout to get the plates out, knowing and appreciating as he did how the upper spout was being supported, was an act of negligence on his part contributing to his injury, or conduct which, except for the statute, would have constituted an assumption of risk.”

We presume the latter part of the sentence means, conduct which, except for the statute, would have constituted the defense of assumption of risk; since, obviously, the statute could not abolish assumption of risk. It abolished the defense of assumption of risk, and left the defense of contributory negligence. Section 2394--1, subd. 1, Stats. 1911. By so doing the Legislature clearly recognized that there was a distinction between assumption of risk and contributory negligence, or it would not have abolished the defense as to one, and not as to the other. In 1913 the defense of contributory negligence was abolished as to employers having four or more employés engaged in a common employment at the time of the accident. Section 2394--1, subd. 3, Stats. 1913. The provision abolishing the defense of assumption of risk remains unchanged. See section 2394--1, subd. 1, Stats. 1913, again showing that the Legislature recognized the distinction between contributory negligence and assumption of risk.

[1] This court has frequently, and especially of late, had occasion to state in various phraseology the fact that assumption of risk and contributory negligence may coexist, or one may be present and the other absent. See Campshure v. Standard Mfg. Co., 137 Wis. 155, 118 N. W. 633;Dodge v. Kaufman, 152 Wis. 171, 139 N. W. 741; Van Dinter v. Worden-Allen Co., 153 Wis. 533, 138 N. W. 1016, 142 N. W. 122; Murray v. Paine Lumber Co., 155 Wis. 409, 144 N. W. 982;Janiak v. Milwaukee Western Fuel Co., 156 Wis. 544, 146 N. W. 788;Jahn v. Northwestern Lithographing Co., 157 Wis. 195, 146 N. W. 1131.

[2] By its answer to question 4 the jury found that by the exercise of ordinary care the deceased, before climbing into the spout, could have learned the manner in which the top spout was supported, and by its answer to question 5 it found that by the exercise of like care he could have comprehended the danger. Both these questions relate to contributory negligence. The claim of counsel for plaintiff that they relate to assumption of risk in unfounded, for the court, as well as counsel, clearly understood that assumption of risk was not a defense, and that no questions on that branch of the case were needed or permissible. The answers to the two questions became practically immaterial by reason of the fact that question 6 itself covers the whole field of contributory negligence. They only serve to emphasize the fact that, no matter in what form the issue of contributory negligence was presented, the jury found against plaintiff.

[3] The correct practice, however, is to submit only one question on the subject of plaintiff's contributory negligence, but the submission of two partly covering the field and one wholly so, where the answers are consistent, cannot be held prejudicial error.

Question 6 read:

“Did any want of ordinary care on the part of Ernest Samida proximately contribute to produce his injuries?”

Relative to it the court charged the jury as follows:

“You are instructed that it was plaintiff's duty to exercise ordinary care for his own safety, and that the exercise of such care includes the fair use of one's faculties and opportunities of observation in order to learn and comprehend the dangers that are naturally incident to the situation. The deceased, Ernest Samida, is chargeable with the knowledge of such danger as he might know or comprehend by the exercise of such ordinary care, and such as he could have discovered, and ought to have discovered, by the use of his sight and other senses in the exercise of such care. You will carefully consider the evidence in this case bearing upon the inquiry as to whether Samida's own conduct at the time of the injury lacked the exercise of ordinary care--that is, whether or not he himself was negligent in the manner in which he attempted to take the plates out of the chute, and whether he was negligent in going into the chute at all to take the plates out under the conditions then surrounding him, and whether he was negligent in any way that contributed...