Tiemann v. May
| Decision Date | 04 June 1940 |
| Parties | TIEMANN v. MAY et al. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a judgment of the Municipal Court of Kenosha county; Edward J. Ruetz, Judge.
Affirmed.
Action by Ed Tiemann, plaintiff, against Sol May and Leo May, defendants, commenced on November 26, 1938, to recover damages for personal injuries sustained while operating a tractor and corn binder as an employee of defendants. The complaint charges a violation of the safe-place statute. The action was tried to the court and a jury. The jury found that defendants had failed to provide a safe-place of employment with respect to the furnishing of guards or shields on a power transmission shaft running from the tractor to the binder. Questions were submitted to the jury whether there was any violation with respect to the type of tripping mechanism used or the kind of rope supplied for this purpose, but the jury did not answer these questions. Plaintiff was found contributorily negligent to the extent of 10% and damages were assessed at $11,000. Judgment was entered upon the verdict on October 21, 1939. Defendants appeal. The material facts will be stated in the opinion.L. E. Vaudreuil, of Kenosha, for appellants.
Taylor, Phillips & Taylor, of Kenosha, for respondent.
Defendants' principal contention is that the evidence does not support the jury's finding that defendants violated the safe-place statute. This calls for a review of the facts.
Defendants own a farm in Kenosha county. Plaintiff was an employee of defendants. In 1935, defendants purchased a 1935 model Case tractor and corn binder, equipped with a device known as a power take-off. When assembled and in working order the tractor not only pulled the corn binder but through the power take-off and attached shaft furnished the power to run the machinery of the corn binder.
As indicated in the photograph, the tractor had a type of seat customarily used in farm implements. Under the seat was the power take-off and the shaft leading to the binder. The latter revolved when the binder was in operation. A shield, which was fastened somewhere under the seat of the tractor, covered this shaft for a distance of about nine inches back of the seat. The shaft has a universal joint which is about thirty one and one-half inches from the rear edge of the seat. The binder contains a tripping device so that bundles may be discharged on the ground, and this device is worked by a rope extending from the tripping device and fastened onto the seat of the tractor. Plaintiff was accustomed to the handling of different types of farm machinery and was an experienced farm worker. On September 24, 1938, he was using the corn binder and tractor. He fastened the rope to the tractor in the usual manner, worked all morning, returned at one o'clock in the afternoon and cut corn until the time of the accident. At the time of the accident when he pulled the rope the tractor was in a straight line with the corn binder, and at that time he either lost his balance or in some fashion was pulled off the seat, and his glove and eventually his arm became tangled in the rope and twisted around the shaft. A portion of his arm was pulled off, and further amputation was required.
The question presented upon these facts, none of which are in serious dispute, is whether it was open to the jury to conclude that there had been a violation of sec. 101.06, Stats., which, so far as material, reads: “Every employer shall furnish employment which shall be safe for the employes therein and shall furnish a place of employment which shall be safe for the employes therein and for frequenters thereof and shall furnish and use safety devices and safeguards, and shall adopt and use methods and processes reasonably adequate to render such employment and places of employment safe ***.”
Sec. 101.01(1), Stats., provides as follows: “The phrase ‘place of employment’ shall mean and include every place, whether indoors or out or underground and the premises appurtenant thereto where either 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 profit, but shall not include any place where persons are employed in private domestic service or agricultural pursuits which do not involve the use of mechanical power.”
Sec. 101.01(11), Stats., provides: “The term ‘safe’ or ‘safety’ as applied to an employment or a place of employment or a public building, shall mean such freedom from danger to the life, health, safety or welfare of employes or frequenters, or the public, or tenants, or firemen, and such reasonable means of notification, egress and escape in case of fire, and such freedom from danger to adjacent buildings or other property, as the nature of the employment, place of employment, or public building, will reasonably permit.”
[1][2][3] By the terms of sec. 101.01(1), Stats., the safe-place statute does not impose any duties as to any place where persons are employed in agricultural pursuits which do not involve the use of mechanical power. It does, however, plainly apply to all such places where the activities there involve the use of mechanical power. The farmer who carries on his agricultural pursuits with the assistance of devices involving the use of mechanical power is plainly covered by the act. Dugenske v. Wyse, 194 Wis. 159, 215 N.W. 829. These devices must be so constructed and so guarded as to make the employment and place of employment as safe as its nature will reasonably permit. This brings us to the question whether a farmer, who purchases in the open market a commonly sold and used farm implement involving the use of mechanical power and furnished with safety devices and equipment devised by the manufacturer, has, as a matter of law, discharged his duty of furnishing a safe employment or place of employment, or whether a jury, in spite of these facts, may under any circumstances find that the safety devices are not reasonably adequate to render the employment or place of employment safe. Defendants contend that to permit a jury to find a standard and commonly used farm implement unsafe puts an intolerable burden upon the farmer,...
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...89 Wis.2d 444, 458, 278 N.W.2d 827 (1979); Mickelson v. Cities Service Oil Co., supra, 250 Wis. at 6, 26 N.W.2d 264; Tiemann v. May, 235 Wis. 100, 106, 292 N.W. 612 (1940); American Mut. Liability Ins. Co. v. Chain Belt Co., 224 Wis. 155, 162, 271 N.W. 828 (1937), and the existence or the s......
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... ... If it can be said that the appellant school district is an 'owner' upon the facts of this case, then it is impressed with a nondelegable duty to make the bleachers safe under sec. 101.06, Stats. Mickelson v. Cities Service Oil Co. (1947), 250 Wis. 1, 26 N.W.2d 264; Tiemann v. May (1940), 235 Wis. 100, 292 N.W. 612. We differ with the learned trial judge, however, in his conclusion that upon the undisputed facts of the instant case the school district is an 'owner.' The school district was clearly not the legal title owner of the athletic field or the bleachers, and ... ...
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