Kliefoth v. Nw. Iron Co.

• Decision Date: 01 March 1898
• Citation: 74 N.W. 356,98 Wis. 495
• Parties: KLIEFOTH v. NORTHWESTERN IRON CO.
• Court: Wisconsin Supreme Court

98 Wis. 495

74 N.W. 356

KLIEFOTH

v.NORTHWESTERN IRON CO.

Supreme Court of Wisconsin.

March 1, 1898.

Syllabus by the Judge.

The complaint stated that the defendant employed an incompetent servant to take charge of boilers and engines in its blast furnace and that plaintiff was injured by a negligent act of such servant in the line of his duty; Held:

1. That the mere allegation that the servant performed a particular act negligently, and plaintiff was thereby injured, failed to show that the alleged negligence of the master, in employing the incompetent servant, was the cause of the plaintiff's injury.

2. That the employment of an incompetent servant does not render the master liable to a fellow servant for an injury to him caused by some negligent act of such incompetent servant, unless the injury is the result of such incompetence. If the injury be the result of a mere act of negligence of the incompetent servant, it comes within the rule that the master is not liable to an employé for an injury caused by the negligence of a co-employé in the same business.

3. That to render mere negligence incompetence, there must be something more than mere failure of duty as to a particular act. There must be actual incompetency to do the work properly, either for want of physical or mental ability, or want of that mental balance and self-control that renders one liable to failure to bring into use, with an ordinary degree of success, his intelligence and experience.

Appeal from circuit court, Dodge county; James J. Dick, Judge.

Action by William Kliefoth against the Northwestern Iron Company to recover for personal injuries. From a judgment for plaintiff, defendant appeals. Reversed.

Action for personal injuries. The complaint, omitting formal allegations, is in substance as follows: On the 21st day of December, 1895, the defendant had a totally incompetent employé by the name of Arndt, engaged as an eingineer in charge of the engines and boilers in its blast furnace, with knowledge of such incompetence. On the same day plaintiff, while also in the employ of the defendant, without fault on his part, by reason of willful negligence and careless acts of said Arndt, in turning on the steam to a boiler in which plaintiff was at work in the usual course of his employment, was badly burned, scalded and injured, externally and internally, whereby he was made to suffer great pain and inconvenience, and to expend large sums of money for doctors' bills and nursing, and contract obligations for such purposes, notwithstanding which he has not been wholly cured of his injuries, and they are to some extent of a permanent character. The compensation demanded is $20,000. The answer admitted the injury and the manner in which it was caused, but denied that Arndt was incompetent or that the injury was caused by his negligence or carelessness. The answer also put in issue the alleged extent of the injury and damage.

At the commencement of the trial defendant's counsel objected to any evidence under the complaint, which objection was overruled and due exception taken thereto. The trial resulted in a special verdict, by which the jury found, among other things, that negligence of the defendant, or its servants, was the proximate cause of plaintiff's injury; that Arndt was incompetent; that plaintiff's place to work was not reasonably safe, and that the act of turning on the steam to the boiler in which plaintiff was working was the result of the carelessness of the defendant or its servants. The damages were assessed at $5,300. There was a motion to set aside the verdict and for a new trial, among other things, on the exception to the overuling of the demurrer ore tenus. Defendant appealed from the judgment.V. W. Seeley and C. H. Van Alstine, for appellant.

Malone & Bachhuber and Lawrence & Lamoreux, for respondent.

MARSHALL, J. (after stating the facts).

As we view this case, the decision of the question raised by the exception to the ruling of the trial court on the sufficiency of the complaint is decisive of the appeal. The only negligence of the defendant alleged, is that of knowingly placing one Arndt, an incompetent person for the work, in charge of the engines and boilers in its blast furnace, where such plaint...