#### Langos, Respondent, vs. Menasha Paper Company, Appellant.

*February 24*

March *17, 1914.*

*Master and servant: Unsafe worlcing place: Absolute duty of master: Repairing machinery while in motion: Contributory negligence.*

1. Secs. 2394 — 48, 2394 — 49, Stats. (Laws of 1911, ch. 485), are applicable to all employers and all employees in this state, except those expressly exempted from their operation, and impose an absolute duty upon the employer to make the place of employment as free from danger as the nature of the employment will reasonably permit, and not to permit the employee to work in an unsafe place.

2. If this duty is not performed and injury is caused thereby to the employee, the liability of the master follows as a matter of course, in the absence of contributory negligence on the part of the employee.

3. Where a millwright employed in a paper mill was directed to repair a felt guide above the rolls of a drying machine, and undertook to do it while the machine was in motion, the superintendent and manager of the mill both being present and knowing how the work was being done and not objecting thereto or taking any steps to stop the machine, which could readily have been stopped without seriously interrupting the business, the jury were warranted in finding an omission of the statutory duty.

*4.*In such case, the conduct of the millwright in mounting the machine to make the repair while it was in motion, and the fact that he might have had the machine stopped but failed to do so, so far as they tend to show assumption of the risk *419on his part, were immaterial, since assumption of the risk is no defense under the statute.

5. Upon the evidence in this case it was a question for the jury whether such millwright was guilty of contributory negligence, either in attempting to mate the repair with the machine in motion, or in the way he descended from his position on the machine, during which descent his hand was caught'between the rollers.

Appeal from a judgment of tbe circuit court for Ashland county: G. N. Risjoed, Circuit Judge.

*Affirmed.*

This is an action to recover damages for personal injuries received by the plaintiff while working for the defendant in its paper mill at Menasha.

The plaintiff, *Joseph Langos,*had been a mechanic for fifteen years. Eor a number of years preceding the accident he had been doing the work of a fireman and engineer on stationary engines. He entered the defendant’s employment as fireman and worked at that for about á month, and in February, 1911, he began work as millwright in defendant’s mill, which was his first engagement at work of the nature incident to this employment. He continued as millwright until he was injured June 10, 1912. His duties were to look after the machinery and see that all was in proper operative shape, and if there was anything wrong to fix it or to see to it that it was fixed. For this work he received $2.25 per day. He was under the control of the superintendent and was subject to his control and commands.

On the morning of June 10, 1912, after the mill had been started, about 1:30 o’clock a wooden guide which conducted the felt over the drier rolls in the drying machine was found to be broken. The defendant’s superintendent, Torsrud, directed the plaintiff to make the repair by replacing the broken guide with a new one. The drier machine consists of a double tier of large heated rolls arranged in parallel lines in a long iron framework. This machine was operated with the general power by means of a separate clutch thrown in and *420out by a lever. Over the rolls was stretched a piece of canvas called tbe drier felt, over which the paper ran. as it went through the machine. The felt on the rollers was held in place by small counter rolls between the large rolls. A large open framework covered the sides of the machine, and in this framework were the journals for the hubs of the rolls. The machine stood east and west in a room 120' by 40 feet, with a considerable space to the north side. It was necessary for the plaintiff, in fixing this broken stick, to measure its length. To do this he procured a- small stick about nine feet long and one-fourth inch by three-eighths inch thick. The machine stands about eighty-four inches high and is about 104 inches across. The drier rolls are eighty-eight inches long and are placed five and one-half inches apart. . Between these are the felt or counter rolls, which are ninety-six inches long, four and one-half inches in diameter, and the space between these and the drier rolls is about one inch. The guide stick which the plaintiff was to measure and replace was about five inches above the frame and ninety inches from the floor, and extends across the machine.

At the time of the accident the machine was running, but no- paper was going through it. After being told to fix the broken guide the plaintiff procured the above described stick and mounted.the frame of the machine to take the measurement of the length of the broken guide stick. He called to one of the men working on the other side of the machine to help him take the measurement. This man mounted a platform which ran along on the south side of the machine and took the stick as plaintiff passed it to him and placed it flush with the end of the broken guide, while the plaintiff marked the length of it at the other end. The plaintiff was standing with his right foot on the frame of the machine at the point marked 5 in the accompanying illustration, his left foot on the journal of the roll just below the point 5 and thirty-six inches from the floor, his left hand and arm thrown over the top of

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*421tbe frame marked at A, and was taking tbe measurement of tbe guide stick marked 1. After tbe plaintiff bad marked tbe length of tbe stick with bis finger be told bis helper to push tbe stick back and let go. Tbe helper did so, and as be let go tbe stick dropped down onto tbe felt running under tbe counter rolls, snapped off near tbe end plaintiff held, leaving a piece about nine inches long in bis band, and tbe balance of tbe stick went in between tbe counter and drier rolls and broke into small pieces. *Langos*then turned to tbe right and took bis right foot from its position on the frame and placed it on tbe projection of tbe frame some twenty-seven inches from the floor. He then turned and was looking for a place to put bis left foot, which be bad removed to a banging position. He would, while looking for a place for bis left foot, naturally turn to tbe left in so doing. While in this position bis band and arm came in contact with tbe moving felt and were drawn into tbe space between the counter roll and tbe hot drier roll at tbe point marked D in tbe illustration, and so injured him as to necessitate amputation above tbe elbow. Plaintiff cried out as be was injured, and Mr. Smith, tbe manager, and a Mr. Jensen, a machine tender, seized the lever and shut down tbe machine. Torsrud, tbe superintendent, removed tbe journal of tbe counter roll and freed bis arm.

Tbe three machine men and tbe superintendent were the only persons having authority to stop tbe machine for repairs or any other purpose, and upon call from tbe plaintiff to stop tbe machine it was their duty to do so. Tbe machine was running when Torsrud, tbe superintendent, told *Langos*to fix the stick, and neither Torsrud nor any one else stopped tbe machine while tbe repairs were being made. Tbe manager, Mr. Smith, was near tbe place where plaintiff came to mount tbe frame and remained there up to tbe time of tbe accident. Tbe plaintiff bad spoken to tbe superintendent about building a platform on tbe north side of the machine upon which to stand while doing any work about tbe machine, but was told *422it was not necessary. There was in tbe room, and not far from tbe plaintiff at tbe time be mounted tbe machine frame to make tbe repair, a saw borse tbirty-seven and one-half inches high, made of 4 x 4, and a crossbar made of 4 x 6, and tbe top face was four inches wide. Tbe spread of tbe legs is less than forty-five degrees. Tbe defendant claims that it would have been practicable for tbe plaintiff to have used this borse in making this measurement, while tbe plaintiff claims it would have been impossible to balance one’s self and reach in over tbe top off the frame from the top of this horse; and that this borse was never used for any such purpose and that no suggestion for such use of it was ever made to him.

Tbe plaintiff was confined to tbe hospital for some four weeks and suffered great pain and agony from this injury, and has ever since been obliged to go to tbe hospital for treatment and cannot follow his occupation as millwright. His wife and three children, aged four, six, and fourteen years respectively, are dependent on him for support.

Tbe questions of tbe special verdict put to tbe jury and answered by them were as follows:

“(1) Did tbe defendant furnish *Langos*a place of employment in which to perform bis duties which was safe ? *A.*No.

“(2) If you answer question No. 1 ‘No,’ then was the failure of the defendant to furnish a place which was safe the proximate cause of plaintiff’s injuries ? *A.*Yes.

“(3) Was tbe plaintiff guilty of any want of ordinary care which contributed proximately to bis injuries ? *A.*No.

“(4) What sum will reasonably compensate plaintiff for the injuries be received ? *A.*$4,500.”

Judgment was entered on tbe verdict in favor of tbe plaintiff and against the defendant for the sum of $4,655.26 damages and costs, from which judgment the defendant appeals.

For the appellant there was a brief by *Doe & BalThorn*and *Wm. F.*Shea, and oral argument by *J. B. Doe.*

As to defendant’s duty and liability, they cited *Tallman v. Chippewa S. Co.*155 Wis. 36, 143 N. W. 1054; *Sparrow v. Menasha**423*P. Co.*154 Wis. 459,. 143 N. W. 317; *Lueckel v. Preston,*154 Wis. 429, 143 N. W. 173; *Priebe v. Kirsch,*155 Wis. 181, 144 N. W. 287; *Montevilla v. Northern F. Go.*153 Wis. 292, 141 N. W. 279; *Johnson v. Webster Mfg. Go.*139 Wis. 181, 120 N. W. 832; and other cases. And upon the question of plaintiff’s contributory negligence: *Kart v. Neillsville,*141 Wis. 3, 123 N. W. 125; *Schultz v.'C., M. & St. P. B. Go.*116 Wis. 31, 92 N. W. 377; *Kansen v. Milwaukee G. & G. Go.*155 Wis. 235, 144 N. W. 289; *Pierson v.*Gitizens'’ *T. & T. Go.*141 Wis. 117,123 N. W. 642; *Schultz v. G. G. Thompson L. Go.*91 Wis. 626, 65 N. W. 498; *Gossens v. Mattoon ■ Mfg. Go.*104 Wis. 406, 80 N. W. 589; *Bigelow v. Danielson,*102 Wis. 470, 78 N. W. 599; *Gardner v. Paine L. Go.*124 Wis. 338, 101 N. W. 700; *Kynes v. Kolt L. Go.*147 Wis. 172, 132 N. W. 889; *Koug v. Girard L. Go.*144 Wis. 337, 129 N. W. 633; *Noetzel v. A. George Schulz: Co.*148 Wis. 106, 134 N. W. 381.

Eor the respondent there was a brief by *Sanborn, Lamo-reux & Pray,*and oral argument by *A. W. Sanborn.*

SiebeoKbe, J.

The defendant contends that the trial court erred in denying its motions for a nonsuit and for a direction of the verdict in its favor, upon the grounds that the evidence in the case shows that the defendant furnished plaintiff a safe place of employment and that it adopted and used such methods and processes as were reasonably adequate to render his employment and place of employment safe. The statutes governing the case are embraced in ch. 485, Laws of 1911. The section of this chapter which controls the rights of the parties has been considered in recent cases, and we refer to the case of *Rosholt v. Worden-Allen Co.*155 Wis. 168, 144 N. W. 650, for an exposition of those parts that are applicable here. It is there declared:

> “Said ch. 485 is applicable beyond any doubt to all employees and all employers in this state, excepting only such as *424are expressly exempted from its operation. Sec. 2394 — 48 requires every employer, among other things, to fnrnish a place of *employment'which shall he safe for*employeesSee. 2394 — 49 provides that no employer *‘shall*require, *permit or suffer*any employee to go or be in any employment *or place of employment*which is not safe.’ Sec. 2394^-41 provides that ‘the term “safe” and “safety” as applied to an employment or a place of employment shall mean such freedom from danger to the life, health or safety of employees ... as the nature of the employment will reasonably permit.’ ”

It is also declared in that ease that these sections, in connection with others there cited, “make some radical changes in the common law as it existed when the act was passed,” and that “the statute in terms imposes an absolute duty upon the employer to make the place of employment as free from danger as the nature of the employment will reasonably permit, and in the absence of contributory negligence the liability of the master follows as a matter of course if this duty is not performed and injury results to the employee because it is not performed.” See, also, *Tallman v. Chippewa S. Co.*155 Wis. 36, 143 N. W. 1054. The jury found that the defendant failed to furnish plaintiff a place of employment' in which to perform his duties in making the repair on the paper machine which was safe, and that this failure on its part proximately caused the plaintiff’s injuries. The trial court held that the evidence sustained these findings. The question is, Did the court err in holding that the evidence in the case sustains these findings? It is alleged that defendant failed to furnish the plaintiff a safe place of employment and that it required, permitted, and suffered him to go and be in a place of employment which was not safe because the paper machine was not stopped while plaintiff was required to repair the guide board, or felt guide, as described in the foregoing statement. This statement shows the nature of the repair the plaintiff was engaged at; the condition of the place on the machine where he stood; the method employed to perform *425tbis duty while the machine ivas running. It appeared that the superintendent, under whom the plaintiff worked, discovered that the felt guide was out of repair shortly after the machine was started in the morning and that it required repair before any paper could pass through the machine, and that he directed the plaintiff to make the repair. Following this direction of the superintendent, the plaintiff procured the measuring stick and mounted the machine at the place and in the manner heretofore stated, in the presence of the general-manager and while the superintendent was in the room and the machine was running. It also appears that the duty of starting and stopping the machine devolved on the superintendent and the machine tenders. The claims of the defendant are that the facts and circumstances bearing on defendant’s alleged defenses do not support the finding that defendant failed to furnish the plaintiff a safe place of employment land that it required, permitted, or suffered him to go and be [in an unsafe place of employment. On the first branch of ■¡his question, namely, whether or not the place where the plaintiff stood on the machine while it was running was as [ree from danger “as the nature of the employment will realm ably permit,” there is hardly room for controversy. It lems plain that the machine could have been stopped with-it seriously interrupting the business, and that this obviously juld have rendered the place of plaintiff’s employment safe would have avoided requiring, permitting, or suffering to go or be in an unsafe place of employment. It is [muously contended that defendant was not in default in litting the machine to run while the plaintiff was so en-Jsd in making the repair, and that the presence of the man-I and superintendent, who were in the room and knew how repair was being made, did not relieve the plaintiff, be-it devolved on the plaintiff, under the circumstances of iployment and duties, to have the machine stopped, and re consequences of the machine not being stopped, under *426the situation presented, are not attributable to the defendant under the statutory regulation. In considering this claim it is necessary that the ultimate questions of the plaintiff’s contributory negligence and his assumption of the hazard incident to his employment be kept separate from defendant’s absolute duties in the matter, though the same evidential facts may be relevant and material to all these inquiries. The plaintiff clearly ranked as a subordinate to Smith, the manager, and Torsrud, the superintendent, and was under express direction of the superintendent to repair this felt guide. The manager and superintendent both participated in directions and seeing that the duty was performed and must have known that the machine was then running. ' Their presence and conduct furnish a basis for the inference by the jury that they sanctioned the method of making this repair by the plaintiff while the machine was in motion, and that they thus required, permitted, and suffered the plaintiff to go and be in this place while performing this duty. Under these facts and circumstances the jury had to resolve the inquiry whether or not the defendant’s representatives were guilty of an omission i of duty in conducting the repair operation as was done and inj requiring, permitting, or suffering the plaintiff to go and bej in' this place of employment while the machine was in motion.! These inquiries are embraced in the first question of the spel cial verdict, and under the evidence the jury were justified iii answering it in the negative.

It is urged that the plaintiff was a millwright, and as sucl it devolved on him to have the machine stopped if that wl necessary to provide him a safe place of employment, heretofore stated, he was a subordinate to the manager superintendent and under the express direction of the supei| tendent to make this repair. Under these relations of l employment and the circumstances of the case, it is appaa that his conduct in mounting the machine to make the re] *427while it was in motion, and his duties and authority in the matter, can hear only on the questions of his having assumed the hazard incident thereto aid whethel or not he was guilty of contributory negligence.

Since assumption of the risk is no defense, it remains to inquire whether or not the plaintiff was guilty of contributory negligence as a matter of law. The evidence shows that his superiors in authority evidently did not regard the stopping of the machine as necessary to make the place of the plaintiff’s employment as safe as the nature o? the employment would reasonably permit. As we have pointed out, their conduct in this regard was a subject for inquiry by the jury, who found them guilty of a breach of duty in requiring, permitting, or suffering the plaintiff to go and be in an unsafe place under the statutory regulations governing this case. In the light of all the facts and circumstances, it cannot be said the plaintiff was guilty of contributory negligence as a matter of law in going and being in this place to make the repair in question without first requesting the machine to be stopped, nor do the facts show as a matter of law that he was negligent in the way he descended from his position on the machine and when his hand was caught between the rollers. An uncertainty as to the plaintiff’s contributory negligence inheres in the case which requires that it be submitted to the jury. *Klotz v. Power & M. M. Co.*136 Wis. 107, 116 N. W. 770. The court properly submitted this question to the jury, who resolved it in the negative.

We have examined the exceptions respecting the court’s rulings on evidence and find that no prejudicial error was committed by the court. Upon the facts adduced in evidence the jury were authorized to find that the defendant failed in performing its duty toward the plaintiff in the respects here-inbefore indicated, which proximately caused the plaintiff’s injuries, and that he was free from contributory negligence; *428we therefore do not discuss the alleged errors bearing on other grounds of negligence. The record presents no reversible error, and the court properly awarded judgment.

*By the Oourt.*— The judgment is affirmed.

Timlin, J., dissents.