Young v. Anaconda Am. Brass Co.

• Decision Date: 03 June 1969
• Docket Number: No. 265,265
• Citation: 43 Wis.2d 36,168 N.W.2d 112
• Parties: Jerry L. YOUNG, Plaintiff-Respondent, v. ANACONDA AMERICAN BRASS CO., Defendant-Appellant, Carl E. BALLARD et al., co-partners d/b/a Kenosha Decorating Co., Third Party Defendants-Respondents.
• Court: Wisconsin Supreme Court

Page 112

168 N.W.2d 112

43 Wis.2d 36

Jerry L. YOUNG, Plaintiff-Respondent, v. ANACONDA AMERICAN BRASS CO., Defendant-Appellant Carl E. BALLARD et al., co-partners d/b/a Kenosha Decorating Co., Third Party Defendants-Respondents.

No. 265.

Supreme Court of Wisconsin.

June 3, 1969.

This is an action for damages by reason of personal injuries suffered by an employee against a statutorily described third party (sec. 102.29, Stats.), alleging a safe-place statute violation. The defendant, the statutory third party, then served a cross-complaint upon the employer alleging a safe-place statute violation on the part of the employer and the right to recover any monetary liability it had to the plaintiff from his employer by virtue of a contract of indemnity. A motion for severance was denied and all issues were tried together by court and jury.

Anaconda American Brass Company, the defendant, described by the workmen's compensation statute as the third party, contracted with Carl E. and Lewis Ballard, copartners d/b/a Kenosha Decorating Company (Ballard), the employer and designated as third-party defendants in this action, to paint a part of its manufacturing plant located in Kenosha. The painting was to be done during a two week lay off or vacation period around the 4th of July, 1965.

Ballard had done painting in various parts or departments of the plant over a period of at least 10 years. This was the third time Ballard had painted this particular department. It was the sheet brass department and was referred to as a 'bay' of the plant. As a part of the job the ceiling was to be painted. The ceiling was some 35--40 feet from the floor.

The bay had a movable overhead crane about 20 feet above the floor. The crane consisted of two large 'I' beams about 12--14 inches wide and placed about 4--5 feet apart. These beams extend from one side to the other in the bay and can be moved as a unit the length of the bay. A self-propelled trolley was mounted on top of the beams and could be moved across the beams for most of the width of the bay. The trolley ran on rails placed in the center of each of the beams. This left about 4--5 inches of the beam on each side of the rail.

About 10 feet above the crane were steel roof trestles.

Prior to the negotiations culminating in the contract, Ballard was assured that the overhead crane could be utilized to facilitate the painting of the ceiling. This would eliminate the necessity of building scaffolds and save considerable time and expense. Anaconda not only permitted this use of the crane but supplied an operator to move it.

The plaintiff, Jerry L. Young, had been employed by Ballard for several months as a painter. Prior to that time he had four and one-half years' experience as a steeplejack and was accustomed to working at considerable heights.

On July 5, 1965, the plaintiff Young and a fellow employee, Billings, went to Anaconda's sheet brass department to spray-paint the ceiling. They intended to paint from an aluminum plank platform made by placing 24 foot planks on top of the trestles. To accomplish this the planks were to be manually lifted to the crane and from the crane to the trestles.

They had the planks up to the crane. Young and Billings were both on the crane. One of the beams of the crane had a catwalk attached to it for the purpose of allowing workmen to service the trolley and other equipment. The other beam did not have a catwalk. In order to be in a position to lift the planks to the trestle, Young determined it was necessary to cross over to the beam without a catwalk (distance between the beams 4--5 feet). He crossed over on the trolley and intended to walk on the 4--5 inches of the top of the beam on either side of the trolley rail. Young was accustomed to walking on narrow beams at considerable heights and only glanced at the surface of the beam. He was standing with one foot on each side of the rail and reached down to lift a plank. There was considerable grease on the beam and one of his feet started to slip. Because of his own weight and the weight of the plank his feet and legs were forced apart in a scissors-like motion. At this time he experienced a very severe pain in his back and legs; the pain increased to an intensity that almost caused unconsciousness. Young was removed from the crane and taken to the hospital. It was eventually determined that he had herniated intervertebral discs at L--4 and L--5 and L--5 and S--1. His injuries caused considerable pain and suffering, necessitated extensive medical treatment and hospital care, and has left him permanently partially disabled.

The jury found Anaconda causally negligent in failing to provide a place of employment as safe as the nature of the premises would reasonably permit and assessed 70 percent of the causal negligence to Anaconda. The plaintiff Young was found 10 percent causally negligent as to his own safety, and Ballard was found 20 percent causally negligent for a safe-place violation.

The jury awarded Young $14,500 for loss of earning capacity to the date of trial, and $75,000 for personal injuries.

The usual and extensive motions after verdict were made by the parties.

The trial court in effect granted judgment on the verdict. The plaintiff was awarded judgment against Anaconda in the amount awarded by the jury as damages less 10 percent and his statutory costs. And Anaconda was awarded judgment for 20 percent of the jury award plus interest and costs against Ballard to be applied as an offset to the amount Ballard is to receive from the plaintiff's recovery under the statutory distribution provided in the Workmen's Compensation Act.

The defendant Anaconda appeals and the third-party defendant, Ballard, has filed a motion to review.

Additional facts will appear in the opinion.

Vaudreuil & Vaudreuil, Kenosha, for appellant.

Phillips & Richards, Kenosha, for plaintiff.

Merten, Connell & Sisolak, Milwaukee, James G. Sisolak, Milwaukee, of counsel, for third-party defendants.

BEILFUSS, Justice.

The issues raised by Anaconda's appeal are:

1. Was the plaintiff a trespasser, as a matter of law, within the meaning of the safe-place statute?

2. Did negligence of the plaintiff equal or exceed the negligence of the defendant, Anaconda, as a matter of law?

3. Were the damages awarded to the plaintiff excessive?

4. Is the defendant, Anaconda, entitled to indemnity from Ballard for all of the money required to be paid to the plaintiff?

The issues raised by Ballard's motion to review are:

1. Is Anaconda entitled to any indemnity?

2. Is there any credible evidence that Ballard was negligent?

3. Did the trial court err in refusing Ballard's requested instructions?

4. Did the trial court err in permitting a second amendment to its cross-complaint?

5. Does the judgment conform to the trial court's decision insofar as Ballard's obligation to Anaconda is concerned?

It is the contention of Anaconda that the beam (upon which the plaintiff stood and fell) was not intended to be used to walk on or a vantage point or platform; that it was merely to serve as a base for the trolley rail; and that the plaintiff was in fact a trespasser at the time and place of his injury.

We are of the opinion Young was not a trespasser at the time and place in question and that he was a frequenter within the meaning of the safe-place statute.

Pertinent sections of the safe-place statute are as follows:

'101.06 Employer's duty to furnish safe employment and place. 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 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, and shall do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employes and frequenters. Every employer and every owner of a place of employment or a public building now or hereafter constructed shall so construct, repair or maintain such place of employment or public building, as to render the same safe.'

'101.01(5) The term 'frequenter' shall mean and include every person, other than an employe, who may go in or be in a place of employment or public building under circumstances which render him other than a trespasser.'

Anaconda knew that Ballard's employees intended to use the overhead cranes to facilitate painting the ceiling. The painting was to be completed in the two week lay off or vacation period. The ceiling was 35--40 feet from the floor level. If the cranes and trestles were not used scaffolding would have to be erected. Both time and money could be saved by the use of the cranes.

Although the plant was closed, Anaconda had a maintenance crew at work. One of the members of the crew was specifically instructed to and did move the cranes at the painters' request to expedite the painting work.

A Mr. Korf, the electrical foreman of Anaconda, testified that the trolleys were oiled and greased on a regular schedule and that as part of this process excess oil or grease on the machines or on the tracks or beams was to be wiped or cleaned off. He further testified the overhead crane had been used as a vantage point for painting and that it was also used periodically by electricians, machinists and steelworkers.

The general rule is that an employee of an independent contractor working upon the premises of an owner is a frequenter working in a place of employment. ¹

There is nothing in the record to suggest that Young was instructed not to use the beams of the crane. On the contrary he was specifically permitted to do so by Anaconda and Anaconda's employees knew or should have known that it was probably the outside beam that would be used. The facts of this case, in our opinion, clearly demonstrate that Young was...