Venden v. Meisel

• Decision Date: 05 November 1957
• Citation: 85 N.W.2d 766,2 Wis.2d 253
• Parties: Mary Eileen VENDEN, Respondent, v. Walter MEISEL et al., Appellants.
• Court: Wisconsin Supreme Court

Page 766

85 N.W.2d 766

2 Wis.2d 253

Mary Eileen VENDEN, Respondent, v. Walter MEISEL et al., Appellants.

Supreme Court of Wisconsin.

Nov. 5, 1957.

Rogers & Owens, Portage, for appellants.

Langer & Cross, Baraboo, for respondent.

FAIRCHILD, Justice.

Concededly, farm labor was being performed and the theory of plaintiff's cause of action was common law negligence. Appellants urge the following propositions:

1. Venden should be found as a matter of law to have assumed the risk;

2. There was insufficient evidence of negligence on the part of Meisel;

3. It should be determined as a matter of law that Venden's negligence was equal to or greater than that of Meisel and;

4. The court erred in instructions to the jury on the questions of Meisel's duty to warn and assumption of risk.

Venden was a mature adult with considerable work experience. He had no experience at all on the particular saw rig. He had not been a farmer very long and on his own farm he did not have equipment similar to the saw rig involved. This comparative inexperience, known at least in a general way to Meisel, was doubtless given weight by the jury in finding that Venden did not assume any risk, that Meisel had a duty to warn Venden, and that the negligence of Venden in not maintaining a lookout and in coming in contact with the shaft constituted 20% of the total causal negligence while the negligence of Meisel was 80%.

The trial court was apparently in some doubt whether assumption of risk was an issue to be submitted to the jury. There was no evidence that Venden was exposed to any danger from the open drive shaft as long as he hauled wood from the pile to the saw. The danger arose when he moved close to the shaft and reached over it. Even though previously Meisel had operated the tractor and power take-off, Meisel had not instructed him not to do so and did not warn him or forbid his doing so when Meisel saw him approaching the tractor for that purpose. Shutting off the power at that moment was a necessary step in accomplishing the work and it appeared both to Venden and Meisel that a moment or two could be saved if Venden did it. Certainly it could not be said that there was assumption of risk as a matter of law. It may not even have been a jury issue. Because of the momentary character of the movement by Venden which brought him into danger and because it had not been part of the task he had been performing for several hours, we are inclined to conclude that the question for consideration was contributory negligence and not assumption of risk. Whether assumption of risk was a jury issue or not, appellants can not complain of the jury's negative answer.

Appellants place reliance upon the dissent in Welch v. Corrigan, 1949, 255 Wis. 58, 38 N.W.2d 148. There the plaintiff's pant leg was caught in a revolving shaft. The trial court had granted summary judgment for defendant and this court reversed because there was a jury question as to negligence by the employer in failing to warn the plaintiff that he should use a guard which had been provided. The majority opinion did not discuss the question of assumption of risk and the dissent was based on the proposition that as a matter of law the risk had been assumed. The case is distinguishable even had the dissent been the opinion of the court. Welch used the machine regularly before the injury and the danger was one which he encountered each time he operated the machine.

The jury's finding that Meisel was negligent can be sustained. It is conceded that Meisel did not warn Venden in any respect and there is no question but that an employer has a duty to warn an employee of danger incident to the employment. Welch v. Corrigan, supra, Miller v. Paine Lumber Company, Ltd., 1929, 202 Wis. 77, 227 N.W. 933, 230 N.W. 702. The employer had a duty to furnish reasonably safe equipment. Knudsen v. La Crosse Stone Company, 1911, 145 Wis. 394, 401, 130 N.W. 519, 33 L.R.A.,N.S., 223. It was for the jury to say whether the standard of due care required Meisel to place a guard on this particular equipment. They were not required to find that this equipment was reasonably safe because of the testimony that a great deal of equipment is operated with an open drive shaft. They were entitled to consider the ease with which a guard could have been provided, the dangers which would be created by operation without a guard and the presence of a wire which could probably not be seen when the shaft was revolving at full speed and which would add to the likelihood of the very type of accident which did occur.

It is true that in finding that Venden was negligent as to lookout and coming in contact with the shaft, the jury found that he had a duty to observe the shaft and to keep away from it and it is suggested that in...