Rosholt v. Worden-Allen Co.

• Decision Date: 10 December 1913
• Parties: ROSHOLT v. WORDEN-ALLEN CO.
• Court: Wisconsin Supreme Court

155 Wis. 168

144 N.W. 650

ROSHOLT

v.WORDEN-ALLEN CO.

Supreme Court of Wisconsin.

Dec. 9, 1913.

Dissenting Opinion, Dec. 10, 1913.

Timlin, J., dissenting.

Appeal from Circuit Court, Milwaukee County; J. C. Ludwig, Judge.

Action by John Rosholt against the Worden-Allen Company. From a judgment for plaintiff, defendant appeals. Affirmed.

On May 22, 1912, the plaintiff was employed by the defendant as a carpenter, and was engaged in laying boards on the roof of a building then being constructed by the defendant. The boards or planks to be laid were raised to the roof and put in piles at convenient places preparatory to being matched and nailed. These planks were 2x6 and were 12, 14, and 16 feet long. During the early part of the work, plaintiff and another carpenter who was working with him got their supply of planks from various piles convenient to them as they went along. When these were exhausted, they were suppliedfrom a pile some distance ahead of them in the direction which they were working. Between them and this pile of planks there was constructed a temporary runway or walk of these 12-foot planks loosely laid across the joists of the roof, which joists were about 6 feet apart. The roof was nearly flat. The joists of the roof ran north and south, and the planks being nailed thereto were laid east and west, as were the planks in the temporary runway, such runway being 12 inches wide and about 30 feet long. It was laid by a helper who was employed to carry the planks to the carpenters, and in doing so he traveled back and forth over it. During the progress of the work the plaintiff went after a supply of planks, and after having picked up several boards started back. In stepping from the pile onto the runway he lost his balance, and in an effort to regain it he stepped on the end of a plank in the runway which projected over one of the joists, and he fell through to the basement of the building, a distance of about 30 feet. This action was brought to recover damages for injuries sustained.

The complaint, in substance, charged the defendant with liability by reason of its failure to furnish the plaintiff with a reasonably safe place in which to do his work, failure to warn him that such runway was not reasonably safe, and failure to promulgate rules and regulations for the conduct of its employés. The case was submitted to the jury on a special verdict, which, with the answers thereto, is as follows:

“First question: Was the runway, laid by the helper upon the roof joists, sufficiently safe to make it free from danger to the employés, when carrying lumber from the place it was piled to the place it was used, so far as the nature of their employment reasonably permitted? Answer: No.

Second question: If you answer the first question no, ought the defendant, in the exercise of ordinary care, to have known, before the accident and in time to have prevented the same, that said runway was not sufficiently safe to make it free from danger to the safety of employés when carrying lumber from where it was piled to the place it was used, so far as their employment reasonably permitted? Answer: Yes.

Third question: If you answer the first question no, ought the plaintiff, in the exercise of ordinary care, to have known, before the accident and in time to have avoided the same, that said runway was not sufficiently safe to make it free from danger to the safety of the employés, when carrying lumber from where it was piled to the place it was used, so far as their employment reasonably permitted? Answer: No.

Fourth question: If you answer the first question no, was the fact that said runway was not sufficiently safe to make it free from danger to the safety of the employés when carrying lumber from the place it was piled to the place it was used, so far as the nature of their employment reasonably permitted, the proximate cause of the injury? Answer: Yes.

Fifth question: Was the plaintiff required, in the performance of his duties, to carry lumber over said runway? Answer: Yes.

Sixth question: Did the plaintiff fail to use ordinary care while carrying the two pieces of lumber over the runway just before and at the time of the injury? Answer: No.

Seventh question: If you answer the sixth question yes, did such failure of such care proximately contribute to the injury? Answer: (No answer.)

Eighth question: What sum of money will reasonably compensate the plaintiff for his injuries? Answer: $1,500.”

From a judgment entered in accordance with such verdict, defendant appeals.

Flanders, Bottum, Fawsett & Bottum and Charles E. Monroe, all of Milwaukee, for appellant.

Rubin & Zabel, of Milwaukee (Horace B. Walmsley, of Milwaukee, of counsel), for respondent.

BARNES, J. (after stating the facts as above).

The appellant makes the following points: (1) It was error to submit to the jury the first and fifth questions of the special verdict. (2) The answers to the second and third questions are inconsistent and contradictory, and both cannot be true. (3) There was no negligence on the part of the defendant. (4) It should be held as a matter of law that the plaintiff was guilty of contributory negligence. (5) The court erred in charging the jury.

[1] 1. In reference to the first point made, it is urged that it was no part of the plaintiff's duty to do the work which he was engaged in at the time he was hurt, because there was another person employed to carry the boards to the carpenters, and plaintiff's duty was confined to putting the boards in place on the roof after they were brought to him.

The helper was either unable or unwilling to carry the number of boards needed, and the plaintiff was obliged to either help himself or sit down and do nothing. He was not specifically forbidden to carry boards, and by doing so he was facilitating the work of his employer. It is more than probable that he would have been censured by the foreman in charge of the work had he been found idle because the helper was not carrying the necessary number of boards.

It was, we think, under the circumstances, clearly within the province of the jury to say that plaintiff was engaged in the line of his duty when he was injured. Indeed, we think it would be quite difficult to say that his contract of employment did not contemplate that he should do the very thing which he did do when the occasion for it arose.

[2] 2. It may well be that there was no room for the jury in this case to find that the defendant in the exercise of ordinary care ought to have known that the runway was not safe, and at the same time to find that the plaintiff in the exercise of such care ought not to have known that the runway was unsafe. If, however, the third question in the special verdict was immaterial, as we think it was, then the inconsistency between the answer to it and the answer to the preceding question was immaterial.

3. This brings us to a consideration of the most important question in the case, and that is whether or not the evidence was sufficient to warrant the jury in finding any negligence or failure of duty on the part of the defendant which would warrant a recovery in this case.

It is clear that a case of common-law liability was not made by the plaintiff, for two reasons:

[3][4] First. The common-law rule required the master to furnish only a “reasonably safe” place in which to work. Howard v. Beldenville L. Co., 129 Wis. 98, 114, 108 N. W. 48. Considering the substantial character of the runway and the nature of the work that was being carried on, a court or jury would not be warranted in saying that the place was not “reasonably” safe.

[5] Second. The rule requiring that the place of employment be reasonably safe was not even applicable to building operations where conditions were continually changing and where dangers arose from the acts of the servants themselves in carrying on such operations. Strehlau v. John Schroeder L. Co., 142 Wis. 215, 217, 125 N. W. 429, and cases cited; Jakopac v. Newport Mining Co., 153 Wis. 176, 180, 140 N. W. 1060.

So, if any liability exists, it must exist by virtue of chapter 485, Laws of 1911 (sections 2394-41 to 2394-71, Stats. of 1911), or by virtue of some other statute of this state. Said chapter 485 is applicable beyond any doubt to all employés and all employers in this state, excepting only such as are expressly exempted from its operations. Section 2394-48 requires every employer, among other things, to furnish a place of employment “which shall be safe for employés.” Section 2394-49 provides that no employer “shall require, permit or suffer any employé to go or be in any employment or place of employment which is not safe.” Section 2394-41, subd. 11, provides that “the terms ‘safe’ and ‘safety’ as applied to an employment or a place of employment shall mean such freedom from danger to the life, health or safety of employés * * * as the nature of the employment will reasonably permit.” Section 2394-41, subd. 4, provides that “the term ‘employé’ shall mean and include every person who may be required or directed by any employer, in consideration of direct or indirect gain or profit, to engage in any employment, or to go or work or be at any time in any place of employment.” Section 2394-41, subd. 3, defines the term “employer” to “mean and include every person, firm, corporation, agent, manager, representative or other person having control or custody of any employment, place of employment or of any employé.” Section 2394-41, subd. 1, provides: “The phrase ‘place of employment’ shall mean and include every place, whether indoors or out or underground and the premises appurtenant thereto where either temporary [[temporarily] or permanently any industry, trade or business is carried on, or where any process or operation, directly or indirectly related to any industry, trade or business, is carried on, and where any person is directly or indirectly, employed by another for direct or indirect gain or...