HALLOWS, C. J.
In September, 1964, Allied was building a number of duplex homes in the city of Madison. It would construct the shell of a duplex, do some interior work, and subcontract the rest. The drywalling was subcontracted to the Madison Drywall Company, which employed Lovesee. Allied had placed a ladder in the open stairwell between the first floor and the basement of the duplex in which Lovesee was injured. The ladder was used as a temporary stairway by all employees working on the premises during the construction. On September 8, 1964, Lovesee, after finishing his work in the kitchen of the duplex, used the ladder to reach the basement
Lovesee argues the trial court committed error: (1) In failing to instruct the jury that it should consider the different standards of care in answering the comparative negligence question; (2) in refusing to instruct concerning the provision of the administrative code and its applicability to Allied, and in instructing the jury it was the responsibility of Lovesee's employer to furnish an adequate ladder; and (3) the apportionment finding was disproportionate because of these errors and it was not supported by the evidence.
1. Instruction on comparison of negligence.
The trial court in reference to the negligence question instructed the jury concerning to safe-place statute. But it is claimed that in reference to the question on comparative negligence the jury should have been instructed that in comparing the negligence it should consider that Allied was "required to act with a greater amount of care than is required of Mr. Lovesee under common law."
It is argued the jury in answering the comparative negligence question is called upon to weigh negligence, not causative effect, and consequently must consider the particular standard of care applicable to each party. The jury should consider the standard of care and does so in determining the contribution of the parties but the causative effect of the negligence is also an element of the consideration. It is true that sec. 895.045, Stats., says nothing about cause but this section has been construed from its beginning to apply only to causal negligence
The trial court gave Wisconsin Jury Instruction, Civil, Part II, 1580,
The phrase "considered as a whole," originally understood, meant that no one element or a combination of several elements of negligence or the number of respects in which a person is found negligent necessarily or solely determines or dictates a definite degree of contribution. At one time it was erroneously considered that if the negligence of the parties was identical in nature, then the contribution was equal. Piesik v. Deuster (1943), 243 Wis. 598, 605, 11 N.W.2d 358. But this doctrine was repudiated in Evjen v. Packer City Transit Line (1960), 9 Wis.2d 153, 100 N.W.2d 580. We said in Grana v. Summerford (1961), 12 Wis.2d 517, 526, 107 N.W.2d 463, that a comparison of negligence is not determined by the kind or character or the number of elements of negligence but by the degree of contribution. See also Van Wie v. Hill (1961), 15 Wis.2d 98, 105, 112 N.W.2d 168. This language did not mean the nature or character or respects of the negligence did not bear a relationship to cause and, therefore, should not be considered in determining apportionment in terms of percentage of negligence. It meant there was no mathematical formula.
There is some language in Taylor v. Western Casualty & Surety Co. (1955), 270 Wis. 408, 71 N.W.2d 363, which was originally considered as forbidding a consideration of the nature and the character of the acts or omissions by the jury in determining the respective contribution to the result. See also Maus v. Cook (1961), 15 Wis.2d 203, 207, 112 N.W.2d 589; Mix v. Farmers Mut. Automobile Ins. Co. (1959), 6 Wis.2d 38, 42, 93 N.W.2d 869.
We conclude the jury did consider in the comparison question that Allied's action in furnishing the ladder was in violation of the safe-place statute. But it does not follow that the conduct of Allied, even though in violation of the safe-place statute, necessarily contributes more to the result than the contributory negligence of Lovesee. In Presser v. Siesel Construction Co. (1963), 19 Wis.2d 54, 119 N.W.2d 405, we stated that ordinary negligence could be compared with negligence founded upon the safe-place statute. This view was followed in Bruss v. Milwaukee Sporting Goods Co. (1967), 34 Wis.2d 688, 150 N.W.2d 337. The language in Bruss to the effect, "it is of no consequence whether the negligence was under the safe-place statute or common-law negligence" means only that such causal negligence can be compared, not that a violation of the safe-place statute always constitutes more negligence than any contributory negligence founded upon a common-law duty.
Lovesee relies on Maus v. Bloss (1954), 265 Wis. 627, 62 N.W.2d 708, for the principle that a violation of the safe-place statute must necessarily contribute more to causation than common-law negligence. In that case the court sustained an apportionment where such result did occur. Any language of Maus which might be construed as supporting the proposition that in the comparison of negligence in a safe-place case the violation of the safeplace statute must be considered as contributing more than the common-law negligence to the injury is overruled.
Lovesee also argues the civil instruction 1580 is applicable only to cases involving the same standard of care and therefore a special mention should be given of the different standards of care as is done in cases involving
II. Instructions on the provisions of the Administrative Code.
The Administrative Code, promulgated by Wisconsin department of industry, labor & human relations has specific provisions concerning safety requirements for the use of ladders as temporary stairways. If a ladder is so used and does not comply with the Administrative Code, the place is unsafe within the meaning of the safe-place statute. The ladder supplied by Allied did not comply because it was too short and was without safety shoes. Reasoning that Allied was in control of the premises and required to obey the code in respect to its employees, Lovesee requested the court to instruct the jury that Allied was required to comply with the code, i.e., sec. IND
III. Apportionment of negligence.
The apportionment of negligence is claimed by Lovesee to be totally disproportionate to the facts. The jury found Lovesee 80 percent causally negligent and Allied 20 percent. This is claimed to be disproportionate because of the errors in the instructions. Since we find no error, the basis for this argument does not exist.
But Lovesee also argues the apportionment is unsupported by the evidence because Allied was more negligent in placing the ladder in the stairwell for use than Lovesee was in using it. It is claimed the ladder was unsafe
While we might not have found Lovesee 80 percent negligent if we were the jury, nevertheless to grant a new trial we would have to find as a matter of law that the negligence of Lovesee did not equal that of Allied. On the facts, we think Lovesee's negligence at least equaled that of Allied and, therefore, he is barred from recovery by his own negligence.
By the Court.—Judgment affirmed.