Opinion
April 5, 1960 —
May 3, 1960.
APPEAL from a judgment of the circuit court for Milwaukee county: HARVEY L. NEELEN, Circuit Judge. Affirmed.
For the appellant there were briefs by Markey Markey, attorneys, and Maurice L. Markey of counsel, all of Milwaukee, and oral argument by Maurice L. Markey.
For the respondent there was a brief by Wickham, Borgelt, Skogstad Powell, attorneys, and Kurt H. Frauen of counsel, all of Milwaukee, and oral argument by Mr. Frauen.
Alfred Tryba brought action for damages arising from personal injuries sustained by him on April 29, 1957, at a gasoline filling station. The defendants were John Petcoff, operator and lessee of the station, and Standard Oil Company, the owner.
Mr. Tryba drove his car into the station to purchase gasoline. He had a wheelbarrow wheel in the trunk of his car, and desired to inflate the tire mounted on that wheel. Mr. Petcoff, who was busy with another customer, tossed the tire gauge to Tryba, permitting him to inflate the tire himself.
The gauge showed pressure in the tire of 10 to 12 pounds per square inch. Tryba applied the air hose to the tire, and it blew out with such force that part of the wheel was propelled against Tryba's face, causing his injuries.
There was expert testimony to the effect that there must have been 100 to 150 pounds' pressure in the tire in order to cause the parts of the wheel to fly apart. The tire bore directions "inflate to 60 pounds." Tryba testified that he had applied the air to the tire for a split second, "or it could have been two, three, or four seconds." Another witness conducted tests with a tire of the same size mounted on a rim, using compressed air from a tank at 175 pounds' pressure, and starting each test with 10 pounds' pressure in the tire. The witness found that after applying the air for two seconds the pressure in the tire was 24 pounds, after four seconds, 50 pounds, and after five seconds, 55 pounds.
The compressor in the Petcoff station is one of the items of equipment owned by Standard Oil Company, and leased as part of the station. It is mounted on a rack bolted to the building. The motor which operates the compressor is automatically controlled so as to maintain the pressure in the tank at from 145 to 180 pounds per square inch. The tank furnishes the compressed air with which the hoist is operated, and other pipes lead to the air hose outside the building, one of which was used by Tryba. There was testimony that there are several types of devices which would reduce the probability of an accident such as occurred here. There are air-pressure regulators which cost $9.70. One of these could be installed in the pipe leading to the air hose used for tires. It can be manually adjusted so as to limit the pressure available in the air hose. If it were set at 60 pounds, and greater pressure were desired in order to inflate a heavy truck tire, the attendant would have to change the setting. There are also air meters, costing about $100 each. An air meter could be located near the end of the hose. By means of a crank, it could be set for any desired air pressure, and then the meter would permit delivery of only enough air to raise the pressure in the tire to the pressure indicated. There was no testimony whether any filling stations have installed the pressure regulators first referred to, but there was testimony that about five per cent of the filling stations in Wisconsin have either the air meter or a gauge installed at the end of the hose.
Plaintiff's complaint alleged that defendants violated the safe-place statute, and also alleged negligence in failing to restrict use of the air hose by the unskilled and to warn of danger.
During the course of the trial, defendant Petcoff and the plaintiff made a separate settlement. Nevertheless, the special verdict as submitted contained questions as to the negligence of Petcoff. The jury found that Petcoff was causally negligent with respect to warning Tryba regarding the use of the air equipment; that the Standard Oil Company failed to maintain the filling station as free from danger to frequenters as the nature of the premises would reasonably permit with respect to the use of an air-pressure regulator; that Tryba was causally negligent in the manner in which he attempted to inflate the tire; and causal negligence was attributed 10 per cent to Petcoff, 80 per cent to Standard Oil Company, and 10 per cent to Tryba.
The court "being of the opinion that the plaintiff's proof was insufficient to support a cause of action against the defendant Standard Oil Company" ordered judgment dismissing plaintiff's complaint, and judgment was so entered July 30, 1959. Plaintiff appealed.
Further facts will be referred to in the opinion.
It appears that plaintiff Tryba must have maintained a connection between the air hose and the tire long enough to raise the pressure in the tire to 100 pounds, or more, and that such pressure was the cause of the accident. It is clear that if an air-pressure regulator had been installed, and set at 60 or 75 pounds, Tryba could not have raised the pressure above the amount set, and the accident would not have happened. If an air meter had been installed, Tryba could have set it at 60 pounds, and the accident would not have happened. The evidence also indicates that one who was experienced in inflating tires would not need such devices in order to avoid a dangerous pressure.
It is undisputed that the filling station was a place of employment under secs. 101.01 and 101.06, Stats. If the use of the air hose by inexperienced employees or frequenters be anticipated, it would not be unreasonable to require that a pressure regulator, or air meter be installed in order to make the equipment safer when so used. The hoist on the premises required the amount of pressure supplied by the compressor system, 145 to 180 pounds, but almost all the tires inflated at this particular station were on passenger cars, and required only about 30 pounds of pressure.
The question before us is whether, under all the circumstances, sec. 101.06, Stats., required Standard Oil Company, as owner of the place of employment, to install the pressure regulator, or air-meter equipment.
The lease is in evidence. By it, Standard Oil Company leased to Petcoff the real estate upon which the filling station is located "together with the buildings, fixtures, equipment, machinery, and appliances located thereon" expressly including, among other things, the compressor, the compressor motor, and an air standard. The entire air system was an installation of a permanent nature. The lease contains a recitation that it is "contemplated that at all times during the period of this lease said premises shall be devoted mainly to the operation thereon of a gasoline service station. . ." It is also provided:
"That none of the provisions of this lease shall be construed as reserving to the lessor any right to exercise any control over the business or operations of the lessee conducted upon the leased premises or to direct in any respects the manner in which any such business and operations shall be conducted, it being understood and agreed that so long as the lessee shall use said premises in a lawful manner as herein provided, the entire control and direction of such activities shall be and remain with the lessee."
Plaintiff points out that the lease also contained a provision permitting the lessor to enter upon the premises at all reasonable times to examine its condition, and to make such changes or repairs to any of the structures as the lessor might see fit. The claimed defect, however, is the construction of the air system without an air-pressure regulator, or air meter, and not a lack of repair or maintenance of the equipment installed.
There is no question but that Petcoff had the duties of an employer under sec. 101.06, Stats. The lease contemplated that the control and custody of the employment, place of employment, and employees were vested in Petcoff to the exclusion (except for inspection, repair, and maintenance) of Standard Oil Company. Thus the duty of the latter under sec. 101.06 was only the duty of the owner of a place of employment. The material part of that section provides that "Every employer and every owner of a place of employment . . . shall so construct, repair, or maintain such place of employment . . . as to render the same safe." Broader duties are assigned to the employer in the first sentence of the section; but not to the owner.
The record does not affirmatively show that the contemplated operation of a service station necessarily, or even ordinarily, includes the use of the air hose by unskilled persons. The majority of the members of the court deem that under the circumstances the duty of the owner to construct the place of employment so as to render it safe did not extend to installing the pressure regulator and air-meter equipment, even though such equipment might reasonably be considered necessary in order to make the place safe if the air hose is to be used by unskilled persons. The decision to permit frequenters to use the air hose without regard to their skill or experience was made by Petcoff in his capacity as "employer," and any duty to make the compressed-air equipment safer because of such use by the unskilled was his duty, rather than the owner's.
By the Court. — Judgment affirmed.