McCrossen v. Nekoosa-Edwards Paper Co., Inc.

• Decision Date: 18 June 1973
• Docket Number: NEKOOSA-EDWARDS,No. 411,411
• Citation: 59 Wis.2d 245,208 N.W.2d 148
• Parties: John McCROSSEN et al., Appellants, v.PAPER CO., INC., a Wis. corp., Respondent.
• Court: Wisconsin Supreme Court

Page 148

208 N.W.2d 148

59 Wis.2d 245

John McCROSSEN et al., Appellants, v.NEKOOSA-EDWARDS PAPER CO., INC., a Wis. corp., Respondent.

No. 411.

Supreme Court of Wisconsin.

June 18, 1973.

Rehearing Denied Aug. 28, 1973.

Potter, Wefel & Nettesheim, Wisconsin Rapids, for appellants.

Chambers, Nash, Pierce & Podvin, Wisconsin Rapids, for respondent.

HEFFERNAN, Justice.

The pleadings in this case put in issue the question of whether McCrossen was exposed to poisonous gas at all.There was substantial evidence, as the result of testimony of Nekoosa Edwards employees, to the effect that they knew of no gas leaks in the bleach plant on the days in question.On the other hand, there was positive testimony by McCrossen and his co-employee, Eastlund, that gas was present on the fifth floor of the bleach plant on both January 13 and January 14 in a substantial concentration.The testimony in this respect posed a question for the jury, which was resolved by finding the defendant negligent.On this appeal, the defendant has not questioned the jury's verdict in respect to its own negligence, but rather contends that the plaintiff was contributorily negligent in several respects.

The defendant contends that the plaintiff was contributorily negligent in failing to tell the Nekoosa Edwards supervisory employees about the gas leak which he claims drove him from the building on January 13.Defendant appears to argue that, had such notice been given, the alleged reoccurrence of a leak of January 14 could have been avoided.On the other hand, there was testimony, received without objection, by a Nekoosa Edwards nurse, who stated that, after she treated the plaintiff on the 14th, she reported the accident to the mill superintendent.The mill superintendent told her that there had also been a chlorine dioxide leak in the bleach plant on the previous day.The superintendent, while on the stand, did not deny making this statement but stated that he could not recall it.In any event, it would appear that the jury on this disputed evidence could reasonably have concluded that the plaintiff's undisputed failure to report the leak was not causal, since the responsible employee of the mill had knowledge of the prior leak.Accordingly, assuming that the failure to report the leak could have been negligence, a jury question remained in respect to cause.The defendant cannot rely upon this element of negligence to support its contention that the plaintiff was negligent and causally so as a matter of law in this respect.The question was for the jury.

Nekoosa Edwards also argues, that if the plaintiff was exposed to gas on January 13, he was contributorily negligent in returning to work in the same area on the following day without first determining that the area was safe.The defendant is in effect arguing that McCrossen was guilty of conduct which, under an earlier view of the law prior to McConville v. State Farm Mut. Auto. Ins. Co.(1962), 15 Wis.2d 374, 113 N.W.2d 14, andGilson v. Drees Brothers(1963), 19 Wis.2d 252, 120 N.W.2d 63, was referred to as assumption of risk.

Prior to adoption of Wisconsin's contributory negligence statute, contributory negligence was a defense to the owner of premises in a safe place statute action involving an employee, while assumption of risk was not.Since the time of McConville, supra, andGilson, supra, assumption of risk as a separate defense for a tortfeasor has been treated as contributory negligence.Nevertheless, in the employee situation, the type of contributory negligence once subsumed under the heading of assumption of risk, carries with it, by virtue of an employer's duty to furnish a safe place of employment and the duty of an owner of premises to furnish a safe place for frequenters when they are there in the course of employment, a different obligation upon an employee than upon another who may be on allegedly unsafe premises only for his own purposes.An employee, when at work in a place of employment, is there because of the directions of his employer.In Beck v. Siemers(1921), 174 Wis. 437, 183 N.W. 157, the court stated that, under the safe place statute, merely to continue with the work directed by the employer although the premises are unsafe does not constitute contributory negligence.The court in Beck advised:

'(I)t would seem best in cases of this character to instruct the jury that merely continuing in an employment and doing work as intended by the employer and the employee in the usual and ordinary manner, although the place of work or appliance is unsafe, does not constitute contributory negligence.'(P. 442, 183 N.W. p. 159.)

In Meyer v. Val-Lo-Will Farms(1961), 14 Wis.2d 616, 111 N.W.2d 500, the court noted, although the case did not involve an employment relationship, that whether the conduct of an injured person constituted contributory negligence was affected by the fact that the person attempted to be so charged was a workman at his place of employment.The court in Meyer, page 622, 111 N.W.2d page 503, stated, 'This fact may bear upon the reasonableness of their exposing themselves to a particular risk.'Meyer thus recognized that a special factor is injected and by implication indicated that, when a jury is called upon to determine the contributory negligence of an employee who nevertheless proceeds to work in an unsafe place, that was a fact which the jury should consider.

More recently, this court in Young v. Anaconda American Brass Co.(1969), 43 Wis.2d 36, 46, 168 N.W.2d 112, 117, discussed the contention that, in a safe place action, '. . . the employee's contributory negligence is less when his act or omission has been committed in connection with the performance of his duties.'Relying upon Meyer, supra, the court in Young concluded:

'(I)t may be more reasonable to assume certain risks in the employment situation than in other situations.'(P. 47, 168 N.W.2d p. 118.)

"Conduct constitutes negligence if the risk of harm involved is of such magnitude as to outweigh what the law regards as the utility of the act or the manner in which it is done."(quotingMeyer, supra, 14 Wis.2d p. 622, 111 N.W.2d p. 503).(P. 46, 168 N.W.2d p. 117)

Using this test, the reasonableness of the plaintiff's conduct, i.e., was he contributorily negligent, must be determined in the light of the utility of going to work at his usual place of employment and performing work in the usual manner even though there was a possibility that the premises might be unsafe.No case has been called to our attention, and we have found none, in which this court has approved a finding of contributory negligence merely because an employee continued to work on premises which he knew might be unsafe.To so hold would run contrary to the policy of previous place-of-employment decisions under the safe place statute.

When McCrossen arrived at work on the morning of January 14, there was no evidence of a gas leak and the bleach plant was operating under what were apparently nonhazardous conditions.Neither the defendant's employees nor the plaintiff's foreman warned him of any danger.Under the evidence, McCrossen was going to his usual place of employment.Without a greater showing of facts than has been made in this record, we would conclude, as a matter of law, that he was not negligent in returning to his place of employment in the bleach plant.

The only question in respect to the plaintiff's negligence presented by this record is whether he acted reasonably when he failed to detect the buildup of gas around him and failed to escape from the area before the gas reached a dangerous concentration.

The plaintiff's evidence tended to prove that the exhaust fan on the chlorine dioxide washer had stopped functioning and that, consequently, chlorine dioxide escaped from the washer into the surrounding area.The defendant, however, presented convincing testimony from which the jury could have believed that, in the event of such breakdown, the seepage of gas would be quite slow and that, had the plaintiff exercised ordinary care, he would have smelled the gas long before it reached a dangerous level.On the other hand, the record does not conclusively establish the origin of the gas leak or that it was necessarily chlorine rather than the relatively odorless chlorine dioxide.

The plaintiff testified that he did not notice any odors until he noticed he was having some 'trouble,' at which time he straightened up from his work and then was almost instantly overwhelmed.There were also facts presented which could have led the jury to conclude that the buildup was almost instantaneous and the plaintiff was not negligent in failing to detect it sooner.The record reveals that, because of the plaintiff's inability to open the door, he remained in the toxic atmosphere for approximately five minutes.Another door was available from which he could have left the premises rapidly, and had he made a reasonable determination of why the door was jammed, he could have quite readily removed the electric cord which jammed the escape door shut.While the jury could have found, on the basis of the evidence, that the plaintiff was negligent in failing to perceive the buildup of the gas, it could also have found him negligent for failure to act reasonably at the time the gas reached a toxic concentration.Under the instructions given, the jury could well have based its finding of contributory negligence solely on its conclusion that the plaintiff reacted negligently when confronted with an emergency.Under the state of facts revealed by the record, the trial court committed reversible error in refusing plaintiff's request for an emergency instruction.¹

'The emergency rule provides that a person confronted with an emergency not caused by his own negligence is not at fault if he acts as an ordinarily prudent person might if placed in the same position, even if it subsequently appears that he did not choose...