Defendant submits that there was no need to erect rails or guards around as large an opening as this one, surrounded by so large a safe work space and therefore, as a matter of law, there was no breach of the safe-place statute. It is contended that the danger was so open and obvious that no guard was necessary. We do not find that the statute distinguishes between obvious and hidden dangers. It is clear that the opening constituted a danger and there is plenty of evidence in the record that it was practicable to guard it with a rail, that such a rail would have made the
Defendant then asserts that there is no proof that its failure to guard the opening caused Umnus' fall into it. The argument is that no one saw him fall, it is not known how or why he did so, and the part played in the tragedy by the lack of a rail is a matter of sheer speculation. Reliance is also put upon the fact that a line drawn vertically from the spot where Umnus landed does not intersect the edge of the hole in the roof at a spot where Umnus would pass closest to the hole if he was on his shortest course for the transportation of material. From this appellant deduces that he was not engaged in his duties at the moment he fell. Umnus did not necessarily leave his employment if he came closest to the opening at one point rather than another. When last seen, a very few seconds before the fall, he was engaged in his work, pushing his wheelbarrow. He had not abandoned the barrow; they fell together. We are unable to deduce that he had abandoned his work and with it his reason for being and his right to be on the roof. We consider he continued to be a frequenter of the roof and entitled to the statutory protection due such a person.
In the matter of causation, defendant relies on Wm. Esser & Co. v. Industrial Comm. (1926), 191 Wis. 473, 211 N. W. 150. In that action the commission had increased a death benefit because it found that the employer's disobedience of an order to put a rail around an opening caused the injury and death. It was unknown how the employee fell into the hole or where he fell from. So far the cases are
Of course it can seldom be demonstrated to a mathematical certainty that the victim would not in some way manage to get into trouble even if the other party had performed the duty to provide safeguards, but it is not required that evidence be carried to the point of proof that the safety device would certainly have prevented the accident and, conversely, that its absence certainly caused it. Leaving contributory negligence out of the question for the moment, our decisions, and those of other jurisdictions over the years, demonstrate that when one owing a duty to make a place or an employment safe fails to do it and that accident occurs which performance of the duty was designed to prevent, then the law presumes that the damage resulted from — was caused by — the failure. The presumption may be rebutted, but if not rebutted by evidence, the plaintiff has met his burden of proof. "If the
In the instant case we consider that the plaintiff's burden of proof of causation was met when she showed to the jury's satisfaction defendant's duty to fence the opening in the roof, the failure to do so, and the entry of Umnus into the opening in a manner such as an efficient rail was designed to prevent.
Defendant also submits that Umnus is not entitled to the benefit of the safe-place statute because it was the duty of his own employer as well as that of the respondent property owner to guard the hole and cites Barrows v. Leath & Co. (1950), 258 Wis. 154, 44 N.W.2d 918. Our decision in that case was on other grounds. In the process of providing a safe place we come to a point where there is no preceding person on whom one may rely to have made the place safe and we deal with the one whose duty it is to go in first and discover the defects and repair or report them. Barrows was such a person. He was injured by a defect which he had failed to discover. We do not consider that the safe-place statute has gone so far as to make the owner an insurer of the person whose job it is to discover and remedy the defect, but this has no bearing on the duty to provide a safe place for Umnus, who does not stand in the position of Barrows in the Leath & Co. Case, supra.
Finally, the defendant submits that respondent may not recover death benefits under the Compensation Act from the Meyer Company, Umnus' employer, and damages from defendant. We think that sec. 102.29 (1), Stats., authorizes exactly such an action as the present one.
"102.29 Third party liability. (1) The making of a claim for compensation against an employer or compensation insurer for the injury or death of an employee shall not affect the right of the employee, his personal representative, or other person entitled to bring action, to make claim or maintain an action in tort against any other party for such injury or death, ..."
Defendant, however, maintains the action should not be permitted when, as here, by contract the Meyer Company is obligated to indemnify the owner of the building for any
The respondent moved to dismiss the appeal because of procedural matters concerned with appellant's motion for a reduction in damages, which motion was granted by the trial court with an option which appellant did not accept. We consider that in its motion and in its subsequent conduct, appellant merely preserved the question of damages for argument here, if it chose to argue them, and did not lose its right to an appeal on the other issues. Accordingly, we have considered the appeal on its merits and have reached the conclusion that the judgment should be affirmed.
By the Court.—Judgment affirmed.
CURRIE, J. (dissenting in part).
I dissent only from that part of the majority opinion which relates to contributory negligence of plaintiff's intestate.
The thirty by thirty-eight foot opening in the roof had existed for two weeks prior to the accident and was well known to plaintiff's intestate. It seems to me that the situation is similar to those cases in which stevedore employees have been held contributorily negligent as a matter of law, who have fallen into open and unguarded hatches on vessels upon which they were working. Brown v. Associated Operating Co. (1915), 165 App. Div. 702, 151 N. Y. Supp. 531, order
While I believe plaintiff's intestate was contributorily negligent as a matter of law, the question of comparative negligence still remains a jury question, because a jury might well be warranted in concluding that the negligence of plaintiff's intestate was less than that of the defendant in failing to guard the opening.
I would therefore reverse the judgment and remand the cause for retrial.