Hoeverman v. Feldman

• Citation: 220 Wis. 557,265 N.W. 580
• Parties: HOEVERMAN v. FELDMAN.
• Decision Date: 03 March 1936
• Court: Wisconsin Supreme Court

220 Wis. 557

265 N.W. 580

HOEVERMAN

v.FELDMAN.

Supreme Court of Wisconsin.

March 3, 1936.

Appeal from an order of the Circuit Court for Dane County; August C. Hoppmann, Judge.

Affirmed.

In this action, commenced January 30, 1935, the plaintiff, Juanita Hoeverman, seeks to recover damages from the defendant, Jacob Feldman, for injuries sustained by her as a result of her operating a certain machine of the Feldman Paper Box Company in a manner asserted to be improper but pursuant to the directions and orders of the defendant. The defendant demurred to the complaint on the ground that it failed to state facts constituting a cause of action. The circuit court overruled the demurrer. From an order entered on July 5, 1935, overruling defendant's demurrer to the complaint, the defendant appealed.

Bagley, Spohn, Ross & Stevens and Arthur A. Blied, all of Madison, for appellant.

Rooney & Hillyer, of Madison, for respondent.

NELSON, Justice.

The complaint alleges, in substance, that the Feldman Paper Box Company is a corporation; that the defendant, Jacob Feldman, is the president of said company and as such president had the general managementand supervision of the affairs of said company; that on or about September 17, 1934, the plaintiff entered the employ of said company; that as such employee she operated a certain die-cutting machine which was regularly used in cutting out designs in the tops of cardboard boxes; that at the time of the commencement of said employment she was informed and instructed by the foreman of the company as to the proper manner of operating said die-cutting machine; that the substance of such instructions was that she should use both hands in placing the uncut boxes on the machine and use both hands in removing the cut boxes therefrom while operating the machine by means of a foot pedal; that she operated the said machine up to October 25, 1934, pursuant to such instructions; that on October 26, 1934, the defendant negligently and carelessly directed and ordered her to operate the said machine by using her right hand to place uncut boxes on the machine, and by using her left hand to remove the cut boxes therefrom, while operating the said machine by means of the said foot pedal; that the defendant knew or ought to have known that she would comply with his said instructions; that the defendant knew, or ought to have known, that operating the said machine, as directed and ordered by him, was inherently dangerous and that his directions greatly increased the chances of injury to the plaintiff; and that, by reason of the defendant's negligence in directing and ordering her to operate the said machine in such improper manner, her right hand was severely cut and injured.

[1] Liberally construing the complaint, as we are bound to do, it substantially charges that the defendant, as president of the Feldman Paper Box Company, had the general management and supervision of the affairs of said company; that he negligently and carelessly directed and ordered the plaintiff to operate a certain diecutting machine in an improper manner; that he knew that she would comply with his directions and orders; that he knew or ought to have known that operating the machine as directed and ordered by him was inherently dangerous and would probably result in injury to her; and that, as a result of operating the machine as directed and ordered, she sustained an injury which was proximately caused by her complying with and obeying such instructions and orders.

[2] The defendant contends that he breached or violated no duty which he as an individual owed to the plaintiff, and that therefore he is not liable to her. It is true that before there can be negligence there must be a breach of duty owing by the person against whom the claim of negligence is made. Dorcey v. M. E. R. & L. Co., 186 Wis. 590, 203 N.W. 327. But it is the rule of the common law that every person shall use ordinary care not to injure another. Greunke v. North American Airways Co., 201 Wis. 565, 230 N.W. 618, 69 A.L.R. 295.

“One must take ordinary care towards others, of course, but one must also take care not to do any act or omit any precaution when from the circumstances it would reasonably appear to an ordinarily intelligent and prudent person that such act or omission might probably cause an injury to somebody.” Hamus v. Weber, 199 Wis. 320, 325, 226 N.W. 392, 393.

Negligence is defined in the Restatement Law of Torts, § 282, as “any conduct, except conduct recklessly disregardful of an interest of others, which falls below the standard established by law for the protection of others against unreasonable risk of harm.” Section 298. “The care which the actor is required to exercise to avoid being negligent in the doing of the act is that which he, as a reasonable man, should recognize as necessary to prevent the act from creating an unreasonable risk of harm to another.”

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