Haile v. Ellis

• Decision Date: 05 November 1958
• Citation: 5 Wis.2d 221,92 N.W.2d 863
• Parties: Gerald HAILE, Respondent, v. Merwyn ELLIS, Appellant.
• Court: Wisconsin Supreme Court

Page 863

92 N.W.2d 863

5 Wis.2d 221

Gerald HAILE, Respondent, v. Merwyn ELLIS, Appellant.

Supreme Court of Wisconsin.

Nov. 5, 1958.

Rehearing Denied Jan. 6, 1959.

See 93 N.W.2d 857.

Jeffris, Mouat, Oestreich, Wood & Cunningham, Louis D. Gage, Jr., Roy E. Berg, Janesville, for appellant.

Kenney, Korf & Pfeil, Elkhorn, for respondent.

CURRIE, Justice.

The issues on this appeal are:

(1) Did the plaintiff assume the risk of his injury as a matter of law?

(2) Was the plaintiff guilty of contributory negligence to the extent that his negligence constituted at least 50 per cent of the aggregate negligence of himself and that of the defendant employer?

The defenses of assumption of risk and contributory negligence have been abrogated in most master-servant cases by sec. 331.37, Stats., but farm labor is specifically excempted from such statute.

Counsel for the defendant contend that, because the plaintiff knew of the defective condition of the corn picker prior to the day of the accident and nevertheless continued to use such machine, this constituted assumption of risk as a matter of law. In this case, unlike Frei v. Frei, 1953, 263 Wis. 430, 57 N.W.2d 731, it is necessary to distinguish between assumption of risk and contributory negligence. This is because of our conclusion that, while we are satisfied that the plaintiff was negligent as a matter of law in placing his hand in as close proximity as he did to the revolving rollers of the picker, the comparison of negligence presents a jury issue. However, if the plaintiff was also guilty of assumption of risk, this would in itself bar any recovery on his part.

This court in Puza v. C. Hennecke Co., 1914, 158 Wis. 482, 484, 149 N.W. 223, held that an intended and continued use of a known defective appliance by an employee in substantially the same way as the employer instructed or intended it should be used constitutes assumption of risk and not contributory negligence.

The late Prof. Francis H. Bohlen of the University of Pennsylvania Law School, who acted as reporter for Restatement, Torts, is recognized as having been one of the nation's greatest authorities on the subject of torts. Prof. Bohlen in an article in 21 Harvard Law Review 233, 249, distinguished between assumption of risk and contributory negligence as follows:

'Voluntary assumption of risk is the mere passive subjection by the plaintiff of himself to the risk of injury inherent in known defective conditions. Contributory negligence is an act or omission on the plaintiff's part tending to a reasonable probability to add new dangers to his situation, not necessarily incident to the known defective conditions, and bringing upon himself a harm not caused solely by them, but created in part at least by his own misconduct.' (Emphasis supplied.)

In the instant case the defendant employer intended that the plaintiff should use the defective machine in picking corn, although he did not intend that the plaintiff should clear the rollers of the picker, when they became clogged with stalks, by manually pulling out such stalks while the power was still operating the rollers. A factual dispute exists as to whether it was possible to clear the clogged rollers while the power was disengaged. According to the plaintiff it was not possible to clear the clogged rollers with the power turned off, while the defendant states that he always did so on the occasions when he operated the picker.

Because of the defect arising from the worn gears, the clogging of the machine and the clearing of the clogged rollers were inevitable incidents of the operation of the picker. If the clogged rollers could not be cleared except by pulling the stalks out by hand while the power was turning the rollers, the plaintiff assumed the risk of any danger of injury which was inherent in such process. This is because such pulling of the stalks out from between the rollers while the power was engaged was part of the necessary operation of the picker. However, if it was not necessary to have the power engaged in order to clear the clogged rollers, then the defect in the mechanism presented no inherent risk of danger to the plaintiff in the continued use of the picker. Clearing the stalks out between the rollers could be done while the power was disengaged, and the defect in the machine did not, therefore, render the machine inherently dangerous to the operator.

Thus resolving of the issue of assumption of risk is dependent upon ascertaining whether or not it was feasible for the plaintiff to clear the clogged rollers with the power disengaged. A dispute of fact exists as to this which necessitates that the question of assumption of risk be left for determination by a jury.

There is one exception to the rule that continued use by an employee of a defective machine or tool, when such use is inherently dangerous, constitutes assumption of risk. Such exception exists when the employee continues such use relying upon the assurance of the employer that he will repair the defect, and such continued use does not extend beyond a reasonable time in...