Johannsen v. Peter P. Woboril, Inc.
| Decision Date | 08 January 1952 |
| Citation | 260 Wis. 341,51 N.W.2d 53 |
| Parties | JOHANNSEN, v. PETER P. WOBORIL, Inc. |
| Court | Wisconsin Supreme Court |
This is an action to recover damages alleged to have been sustained by reason of defendant's violation of the safe place statute. The action was commenced November 13, 1950.
Dougherty, Arnold & Waters, Peter P. Woboril, Jr., Milwaukee, for appellant.
Quarles, Spence & Quarles, Milwaukee, Kenneth P. Grubb and Edmund W. Powell, Milwaukee, of counsel, for respondent.
Because there must be a new trial we make the statement of facts as brief as is consistent with an understanding of the issues raised by the appeal.
The defendant had a contract to paint the interior of the plant of Bucyrus-Erie Company in which the plaintiff was employed. In carrying out the contract the defendant established what it calls a paint shop which was simply an area in which defendant kept its paint cans and where it mixed paints and cleaned equipment. This area was shifted from time to time to make it convenient to that part of the very large plant which defendant happened to be painting. Defendant set up its paint shop adjacent to certain welding machines which the plaintiff used in his work. Defendant's foreman saw or should have seen plaintiff welding there the day before the accident but made no protest and gave no warning that the welding might ignite defendant's inflammable cleaning liquid, nor did defendant move its material to a less dangerous area. On the second day, while plaintiff was welding, a small fire started on the floor among the cans of defendant's material. Plaintiff attempted to stamp it out and while he was doing so a pool of inflammable liquid became ignited and severely burned him. He received workmen's compensation for his injuries from the Bucyrus-Erie Company and he also brought the present action for damages against the defendant, complaining that the defendant had violated sec. 101.06, Stats.,--the safe place statute,--and the violation had caused the injuries. Section 102.29, Stats. awards to the injured employee the first one-third of the amount recovered from the tortfeasor in such an action, less cost of collection, and next awards to his employer, in this case Bucyrus-Erie Company, reimbursement for all the employer's outlay in workmen's compensation benefits. The Buycyrus-Erie Company is a self-insurer and its share in a possible recovery of damages by Johannsen from Woboril, Inc. would be substantial. Sec. 102.29, Stats. makes provision for the employer to join in the action to protect its interest in the recovery from the tortfeasor. Bucyrus-Erie Company formally declined to join. This, of course, only went to its participation in the litigation; the division of such damages as may be awarded is settled by the statute, supra. The jury found that Woboril, Inc. did not furnish and maintain a safe place as required by the statute and the failure was an efficient cause of plaintiff's injuries. It also found plaintiff guilty of contributory negligence and compared the negligence of the respective parties. Judgment for plaintiff was entered on the verdict June 1, 1951, and the defendant has appealed.
Plaintiff was not a trespasser when he carried on his own work in the area which defendant was using as a paint shop. In respect to that area and in respect to defendant he was a frequenter, entitled to the protection of the safe place statute and the defendant was charged with the duty of keeping that area safe for frequenters within the provisions of the statute, insofar as defendant's own operations were concerned, although its control over the area was not exclusive. Evidence sustains the findings that defendant failed to perform the duty and such failure was a proximate cause of plaintiff's injuries. The findings on comparative negligence likewise have support in the evidence.
We consider the learned trial court properly excluded evidence offered by defendant of how other painting contractors performed similar operations. They may be influenced by various factors of convenience or economy. Their practice, in an instance such as this, is irrelevant in determining whether the defendant rendered the place as safe as its nature and the nature of the employment will reasonably permit. What could and should have been done was too clear to be affected by what other contractors might choose to do.
The instruction by the court to the jury...
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...be given credence by the court.' Raim v. Ventura (1962), 16 Wis.2d 67, 72, 113 N.W.2d 827, 830. See also Johannsen v. Peter P. Woboril, Inc. (1952), 260 Wis. 341, 345, 51 N.W.2d 53; and Bellmann v. National Container Corp. (1958), 5 Wis.2d 318, 325, 91 N.W.2d 762. In Marsh Wood Products Co.......
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