Summary
In L. G. Arnold, supra, defendant's crane operator carried a steel beam in a sling while the plaintiffs walked along at each end of the beam to prevent it from swinging.
Summary of this case from Stefanovich v. Iowa Nat. Mut. Ins. Co.Opinion
September 10, 1954 —
October 5, 1954.
APPEALS from judgments of the circuit court for Dane county: ALVIN C. REIS, Circuit Judge. Affirmed.
For the appellant Industrial Commission there was a brief by the Attorney General and Mortimer Levitan, assistant attorney general, and oral argument by Mr. Levitan.
For the appellants other than the Industrial Commission, there was oral argument by Willis E. Donley of Menomonie.
For the respondent there was a brief by Wilcox Sullivan of Eau Claire, and oral argument by Francis J. Wilcox.
Actions by plaintiff L. G. Arnold, Inc., against defendants Clarence Knutson (No. 118), Glen George Nepstad (No. 119), Employers Mutual Liability Insurance Company, and Industrial Commission of Wisconsin for review of the findings of the commission that the injuries of Knutson and Nepstad were caused by plaintiff's failure to comply with Order No. 3537 of the General Orders on Safety and sec. 101.06, Stats., and the commission's orders awarding 15 per cent increased compensation under sec. 102.57 to each applicant. From judgments setting aside the commission's findings and orders, defendants appeal.
Plaintiff contracted to construct a building for the Lakeside Aluminum Company in an area on the east side of which was a public highway 24 feet wide. On the east side of the highway and running generally in a northeasterly-southwesterly direction were high-power lines carrying 66,000 volts of electricity; along the north end of the property was a railroad spur where materials for use in the construction had been unloaded.
On August 5, 1946, and the forenoon of August 6th, a truck crane was used to place steel girders in position in connection with the construction at the north end of the building. On the afternoon of August 6th its operators were directed to transport beams from the spur siding to the south end of the property. Carrying the steel beams in a sling, the crane backed south down the public street about 200 feet, with Clarence Knutson and Glen George Nepstad, employees of the plaintiff company, walking along at each end of the beams to keep them from swinging, so as not to interfere with other traffic on the street. When the crane reached the point where the beams were to be piled on the west side of the road, the operator carelessly swung the boom of the crane to the east and struck the power lines and Knutson and Nepstad sustained severe injuries.
Knutson and Nepstad were paid primary compensation. The commission found that plaintiff had failed to comply with Order No. 3537 of the General Orders on Safety in Construction, which provides:
"1. Protection from Adjoining Power and Light Lines. No part of a structure in progress of erection, including accessory scaffolds, towers, power equipment, booms, and other fixed and movable equipment constructed or used in connection with a construction project, shall extend nearer to conductors carrying electrical current than the distance indicated in the following table: [Table omitted.]
"2. Grounding. . . . All parts of equipment, such as steam shovels, derricks, and similar machinery and devices, which are moved or put in use in the vicinity of conductors carrying electrical current, shall be grounded so far as practicable. . . ."
It ordered the payment of 15 per cent increased compensation as provided in sec. 102.57, Stats. 1945:
"Where injury is caused by the failure of the employer to comply with any statute or any lawful order of the commission, compensation and death benefits as provided in this chapter shall be increased fifteen per cent."
It is contended that since, under Order No. 3537, the boom of the crane was not permitted to extend nearer to the power wires than about 15.9 feet, a violation of that order occurred when it came in contact with the wires.
Order No. 3537 does not apply to the crane under the circumstances existing here. This crane was using the public street for transporting material from the north end of the property where construction was complete to the south end where no construction had been commenced. The accident occurred while the truck crane was stopped on the west side of the highway at a point — from the estimates given in the testimony — not closer than 37 feet to the power lines. In unloading the beams on the west side of the highway, as the operators were directed to do, the boom would not come closer than 37 feet. There was no violation of the order up to that point. The accident occurred when the operator swung the boom to the east instead of to the west. If the crane had been located at the place of the accident and made accessory equipment to a structure in progress of construction, the order would be applicable and in such a case it would also be capable of grounding, as required under the second section of the order. If, in the course of such use, the crane would come within the proscribed distance from the wires, then any order regarding a safety device, safeguard, or other means or methods needed for making the operation safe, would come into play.
In this case, however, the commission attempts to apply its order to an act of negligent operation. In Saxe Operating Corp. v. Industrial Comm. (1929), 197 Wis. 552, 222 N.W. 781, where the commission attempted to penalize by its order the negligent operation of an elevator and it was held that the commission did not have the power to make the order in question, this court said (pp. 554, 555):
"The order here in question does not deal with the erection, construction, or equipment of the physical plant of the elevator, but with the element of negligence or want of ordinary care on the part of the elevator operator in failing to close the landing doors before starting the elevator. . . . In the case of a physical plant, the employer is chargeable with notice of the conditions that prevail in the plant which generally remain fixed and unchanging. But he cannot know in advance of the conditions which may be produced by the negligent or inadvertent acts of his employees."
Here there was nothing about the crane or its operation in transporting the beams down the street that gave the employer warning that the operator would negligently swing the boom to the right instead of to the left.
In the Saxe Case the court went on to say (p. 555)
". . . the legislative intent [is] to limit the power of the commission in drafting these orders to such as relate to the physical plant, rather than to extend the power to such orders as attempt to control the ever-changing human element involved in the operating of such a device as a passenger elevator."
It is also contended that respondent violated sec. 101.06, Stats. 1945, requiring the employer to furnish employment which shall be safe and to furnish a place of employment which shall be safe for employees.
In Deaton v. Unit Crane Shovel Corp. (1953), 265 Wis. 349, 61 N.W.2d 552, where the trial court had submitted a question relating to the negligence of defendant's crane operator under sec. 101.06, Stats., this court held the submission of defendant's negligence on the theory of possible violation of that section to constitute prejudicial error, saying (p. 352):
"As applied to a `place of employment' such statute has reference to an unsafe condition rather than to an act in the process of taking place. . . . The alleged acts of defendant's crane operator as to the manner of lowering or dropping the bucket of the power shovel, and failing to warn plaintiff before so dropping the bucket, relate to acts of operation as distinguished from the condition of the machine. The safe-place statute has no application to such acts of operation, . . ."
The same is true here.
In view of our holding on the questions discussed above, it is unnecessary to consider the other points presented. The trial court properly set aside the findings and orders of the commission.
By the Court. — Judgments affirmed.