Presser v. Siesel Const. Co.

• Decision Date: 05 February 1963
• Citation: 19 Wis.2d 54,119 N.W.2d 405
• Parties: Lester R. PRESSER, Plaintiff-Respondent, v. SIESEL CONSTRUCTION COMPANY, a domestic corporation, Defendant-Appellant, Westmont Engineering Company, a foreign corporation, Impleaded Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 405

119 N.W.2d 405

19 Wis.2d 54

Lester R. PRESSER, Plaintiff-Respondent, v. SIESEL CONSTRUCTION COMPANY, a domestic corporation,

Defendant-Appellant,

Westmont Engineering Company, a foreign corporation,

Impleaded Defendant-Respondent.

Supreme Court of Wisconsin.

Feb. 5, 1963.

Wickham, Borgelt, Skogstad & Powell, Milwaukee, Kurt H. Frauen and Donald L. Johnson, Milwaukee, of counsel, for defendant-appellant.

Porter, Quale, Porter & Zirbel, Milwaukee, for plaintiff-respondent.

Paul C. Konnor, Milwaukee, Stephen R. Miller, Milwaukee, of counsel, for impleaded defendant-respondent and cross-appellant.

HALLOWS, Justice.

Since this case involves two appeals and a cross appeal, we will discuss each appeal separately.

Siesel's Appeal

The basis of Siesel's liability as found by the verdict was negligence in the manner of performing the contract with the government. Siesel contends it, as a general contractor subcontracting all the work, had only a common law duty to warn of latent defects and not to place a barricade around the Nike elevator at the magazine level. There is a conflict of authorities whether the duty required for a negligence action can be predicated upon a contract. See Annotations, 38 A.L.R. 403, 492-3, and 69 A.L.R. 522. This court has held the negligent performance or nonperformance of a duty created by a contract may constitute actionable negligence. Colton v. Foulkes (1951), 259 Wis. 142, 47 N.W.2d 901. Restatement, 2 Torts, p. 1030, sec. 385. We do not accept the rationale of Foster v. Herbison Construction Co. (1962), Minn., 115 N.W.2d 915 and Larson v. Heintz Construction Co. (1959), 219 Or. 25, 345 P.2d 835, that the contract is only one factor bearing on the question of ordinary care under the circumstances. It imposes the standard of care and the obligation to the plaintiff. A general contractor by contract may assume a duty of care for the benefit of others than the promisee over and above such common law liability for negligence which would otherwise be applicable to the facts. The contract between Siesel and the government in article 28, Accident Prevention (A), obligated the contractor to comply with all pertinent provisions of the 'General Safety Requirements' manual in order to provide for the safety of the employees and other persons.

These duties thus assumed by Siesel as general contractor cannot be delegated or assigned by subcontracting the work. The contract provided in article 28(D) that compliance with the provisions of the article on accident prevention by subcontractors was the responsibility of the contractor. While Siesel might protect itself financially by indemnity agreements with its subcontractors, it could not divest or rid itself of its primary obligation or immunize itself from liability. The assumption of similar duties by the subcontractors does not relieve Siesel.

The scope of Siesel's duty to the plaintiff is in sharp dispute. Siesel contends there is no requirement in the contract to provide a barricade for the Nike elevator pit. The plaintiff contends the contract does so provide and a barricade is a reasonable requirement for the safety of workers and others. The safety requirements called for by the General Safety Requirements manual include:

'20-21. * * *

'f. During construction all openings--floor, roof, stairwell, shaftways, pits, and similar unguarded locations shall be provided with an inclosure guard securely anchored in the opening (plate 19). * * *'

Such requirements are pertinent provisions and applicable to the contract entered into by Siesel and call for some kind of a baricade. It is contended the contract was modified by the conduct of the parties because no barricades were requested by the representatives of the government who knew of the condition. The safety manual designated certain representatives of the government to authorize adaptations of the requirements if a literal application of a requirement was impractical. Testimony was offered that a barricade was impractical, but no adaptation was authorized; nothing was authorized or done. The testimony falls short of showing by unequivocal conduct a modification of the contract or an interpretation that these safety requirements were not pertinent. See Nelsen v. Farmers Mut. Automobile Ins. Co. (1958), 4 Wis.2d 36, 90 N.W.2d 123.

We need not discuss whether the proper representatives of the government did not require barricades around the pit. The contract contemplated some type of barricade during construction to guard the pit when the Nike elevator was at ground level and Siesel's failure to provide the barricade was negligence as found by the jury. Citation of authority is not needed for the oftquoted rule that the evidence must be viewed in the light most favorable to the verdict and if there is any credible evidence which under any reasonable view will sustain a verdict, which has the approval of the trial court, this court ought not upset it.

Siesel argues that whether or not it had a duty to erect barricades around the pit, there is no causal connection between the failure to do so and the plaintiff's injuries. Barricades, it is argued, might prevent a person from inadvertently falling into the pit but would not prevent a person from intentionally walking past the barricade to get into the inclosure. The real cause of the accident, it is argued, is the fact the lights were out because if they were on the plaintiff would have seen the open pit. There was testimony an interlocking barricade could have been temporarily erected at a cost of $200, an insignificant sum considering the contract involved approximately $700,000. Whether it was necessary for Siesel to provide an interlocking door on the barricade need not be decided. The jury could have reasonably concluded any barricade would have jarred the plaintiff's preoccupation and focused his attention to the possible danger of the pit. A barricade itself would indicate there might be danger. Workmen preoccupied with their immediate task frequently lose an awareness of surrounding danger. One purpose of a safety device is to offset such natural inattention to environment. It cannot be argued to certainty that the plaintiff would have disregarded a barricade if his attention had been focused upon the possible danger of which the presence of the barricade was to forewarn. A jury question was presented. The finding of causal negligence on the part of Siesel is sustained by credible evidence.

We must reject Siesel's contention that the plaintiff's negligence was an intervening and superseding cause of the accident and Siesel as a matter of public policy should be free from liability under the doctrine of Pfeifer v. Standard Gateway Theater, Inc. (1952), 262 Wis. 229, 55 N.W.2d 29, and Ryan v. Cameron (1955), 270 Wis. 325, 71 N.W.2d 408. The defense of an intervening and superseding cause as such is not applied to the plaintiff's negligence. His causal negligence for his own safety is considered within the scope of the doctrine of contributory negligence, its relationship to causation and apportionment.

The contention is made the apportionment of negligence, 40 per cent to the plaintiff and 60 per cent to Siesel, cannot be sustained as the plaintiff's contributory negligence was at least as great as Siesel's as a matter of law. Siesel's negligence cannot be diminished in degree by arguing that Westmont, the subcontractor, was negligent in not carrying out either Siesel's or its own duties under the subcontract. Westmont's negligence as the plaintiff's employer cannot be and is not an issue between it and its employee. True, the plaintiff was a foreman and had some general duties to watch out for the safety of his co-workers. However, his specific duties as foreman did not include all the duties Westmont had under the contract or statutes. Moreover, Siesel was the only one who could prescribe safety devices binding on all subcontractors. We cannot increase the plaintiff's negligence by imposing upon him a duty to provide barricades. It is, of course, true that ordinarily when one walks in the dark it requires a greater degree of effort to exercise care commensurate with this danger. Reliance is placed upon McNally v. Goodenough (1958), 5 Wis.2d 293, 92 N.W.2d 890, wherein this court held a frequenter was at least 50 per cent negligent as a matter of law in walking through a poorly lighted hallway through an open door. In that case the plaintiff's attention was required to be concentrated upon finding his way out of the building. The case is not on all fours with the facts of the instant case. Here, the plaintiff was at work, knew the layout of his surroundings. He knew his tool box was on the elevator floor close-by. What the plaintiff did not know was that another workman in the plaintiff's absence had sent up the elevator exposing the pit and in one sense creating the danger. The preoccupation of a workman in the discharge of his duties should be considered in determining his percentage of negligence and the care required of him for his own safety. Taking the situation at the moment before the accident that the magazine room was constructed with a pit 8 feet deep, that such pit was only exposed and dangerous when the elevator was at ground level and that it was reasonable for the place to be in darkness as the plaintiff was following instructions not to hook up the welding machine without pulling the power switch, we have the question, whether the plaintiff was equally or more negligent in not ascertaining whether the elevator was at magazine level or in not taking more precautions in walking in the darkness than the general contractor was in not providing a barricade for the safety of employees and others. The jury did not think so and found the plaintiff 40 per cent negligent. The question is a close one and we cannot hold as a matter of law the jury was wrong.

The last assigned error is the alleged...