Welch v. Corrigan
| Decision Date | 13 September 1949 |
| Parties | WELCH v. CORRIGAN. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from a summary judgment of the Circuit Court of Ozaukee County; Edward J. Gehl, Circuit Judge.
Action by John P. Welch against Walter D. Corrigan, Sr., for personal injuries. From a summary judgment for the defendant, plaintiff appeals.-[By Editorial Staff.]
Reversed and remanded for a trial de novo.
This is an appeal from a summary judgment, entered September 2, 1948, in favor of the defendant-respondent. The action was commenced April 10, 1946.
Plaintiff-appellant was employed by the defendant, who resides upon a farm in the town of Mequon, Ozaukee county, where he owns and operates an apple orchard and is also a practicing attorney with offices in the cities of Milwaukee and Cedarburg.
On April 27, 1944, the plaintiff, within the scope of his employment as a farm laborer, was operating a large spraying machine and spraying the fruit trees on defendant's orchard. The energy for the spraying machine came from a farm tractor by means of a power ‘take off’ attachment from the tractor to the spraying machine. While so employed, plaintiff's pants leg became caught in a revolving shaft. His leg was drawn up and against the shaft, seriously injuring and mangling the leg and requiring amputation a trifle below the hip. Other material facts will be discussed in the opinion.
Edward S. Grodin, Milwaukee, for appellant.
William F. Schanen, Port Washington, Walter D. Corrigan, Sr., in pro per, Milwaukee,Thomas M. Corrigan, Milwaukee, for respondent.
It is conceded that there is no cause of action under the so-called ‘safe place’ statute. However, farmers are not relieved from the duties imposed upon them by the common law.
Plaintiff alleges that the revolving shaft was a square shaft with unnoticeable projections therefrom so as to be likely to engage clothing that might come in contact therewith, and that the shaft and the projections therefrom were entirely unguarded. Defendant has asserted that if these projections were unnoticeable to plaintiff who put the attachment from the tractor to the spraying machine and handled the shaft in doing so, worked on and operated the machine, was off and on it, and right over it hundreds of times per day for several days, then there was no reason for the projections to be noticeable to defendant who never actually operated the machine.
Defendant has emphasized that plaintiff had had experience in the operation of tractors and all kinds of farm machinery and that plaintiff, or anyone even with the remote experience of defendant, should at once observe the danger of stepping upon any part of the moving connection between the tractor and the spraying machine.
The pleadings and affidavits put in issue the question of whether defendant advised plaintiff that there was a guard for the machine in question and whether defendant instructed plaintiff in its use. Defendant states in his affidavit for summary judgment that he supplied a guard and instructed plaintiff in its use. Plaintiff denies that defendant supplied a guard and gave instructions as to any safety precautions.
Defendant's exhibit 1 is a picture showing the tractor connected with sprayer without the guard in place, and defendant's exhibit 3 is a picture showing the tractor with guard. From a detailed examination of these exhibits it is noted that the guard extends for a considerable distance to the rear of the tractor floor offering protection from the knuckle and a portion of the tumble bar. The guard would protect, if in place, one mounting the tractor stepping from the draw bar to the platform of the tractor. The trial court in its opinion states ‘plaintiff left the tractor and to get back on he stepped on the revolving rod’ and a few lines later, quoting from plaintiff's testimony at an Industrial Commission hearing, he ‘stepped on the draw bar.’ Exhibits 1 and 3 show the draw bar below the revolving rod and is not to be confused with the revolving bar or tumble bar. Nowhere do we find any statement that plaintiff stepped any place but on the draw bar.
The failure of the defendant to warn plaintiff, as is alleged by plaintiff and denied by defendant, is a question for a jury. See Hoeverman v. Feldman, 1936, 220 Wis. 557, 265 N.W. 580, and cases therein cited. It is stated, 220 Wis. at page 560, 265 N.W. at page 581:
“One must take ordinary care toward others, of course, but one must also take care not to do any act or omit any precaution when from the circumstances it would reasonably appear to an ordinarily intelligent and prudent person that such act or omission might probably cause an injury to somebody.' Hamus v. Weber, 199 Wis. 320, 325, 226 N.W. 392, 393.
‘Negligence is defined in Restatement Law of Torts, § 282, as ‘any conduct, except conduct recklessly disregardful of an interest of others, which falls below the standard established by law for the protection of others against unreasonable risk of harm.’ § 298: ‘The care which the actor is required to exercise to avoid being negligent in the doing of the act is that which he, as a reasonable man, should recognize as necessary to prevent the act from creating an unreasonable risk of harm to another.’'
The question of negligence in failing to instruct and to warn that there was a guard and it should be attached to the tractor floor when the tractor was used to pull the sprayer tank, is a jury question. The defendant had the guard constructed for that purpose. It follows that in the exercise of ordinary care the defendant owed plaintiff a duty to advise him of the guard and its use.
IMAGE
It was stated in Miller v. Paine Lumber Co., 1929, 202 Wis. 77, 227 N.W. 933, 935,230 N.W. 702:
‘We hold that the duty to warn of dangers incident to the employment is not a duty imposed upon the employer by virtue of the so-called safe place statute.
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