The following opinion was filed December 10, 1912:
Vinje, J.There is practically no dispute in the evidence as to how plaintiff was injured. The statement of facts shows precisely what happened and how it happened. The legs of a hoist, which was required to support a weight of from 350 to 400 pounds, in addition to a portion of its own weight, rested upon the ends of two one-inch horizontal boards in front of their support — the rear ends being unfastened. It is apparent that the fastening of the tail end of the plank of the hoist would have no tendency whatever to prevent the weight on the legs from tipping up the rear ends of the loose horizontal boards. That the natural and inevitable tendency of the weight on the legs was to lower the ends on which they rested and tip up the other ends is a fact of which every child using a teeter or see-saw is fully aware. That they would so tip up whenever the weight in front of the support overcame the weight to the rear thereof is equally obvious. That a weight of from 350 to 400 pounds, in addition to the weight of about two thirds of the hoist, though applied only a few inches in front of the support, was likely to overcome the weight of that portion of the boards lying back thereof, is also quite apparent. It is inconceivable that a carpenter of twenty-eight years’ experience should not be cognizant of these facts. He knew just how the hoist was placed, how it was fastened, and what work it had to do. He knew also that any downward pressure or weight upon the legs would tend to raise the rear ends of the- boards on which they were placed. In short, he knew everything the master could have told him relative not only to the manner in which the hoist was constructed and placed, but also to the effect of using it *539in sncb manner as it was used. Tbe mechanical appliance, operation, and resultant danger were so simple and obvious that comment thereon serves only to confuse. One who cannot appreciate such danger from a view or mental picture of the situation itself is not likely to do so through the medium of argument or explanation. Eully knowing and appreciating such situation, plaintiff must be held as a matter of law to have assumed the risk.
Sec. 1636 — 81, Stats., does not abolish the defense of assumption of risk or contributory negligence. Koepp v. Nat. E. & S. Co. 151 Wis. 302, 139 N. W. 179; Williams v. J. G. Wagner Co. 110 Wis. 456, 86 N. W. 157; Knisley v. Pratt, 148 N. Y. 372, 42 N. E. 986; Caddy v. Interborough R. T. Co. 195 N. Y. 415, 423, 88 N. E. 747; Schmitt v. Rohn, 110 N. Y. Supp. 1086; O’Maley v. South Boston G. L. Co. 158 Mass. 135, 32 N. E. 1119. This question is fully treated in the first case cited, and it is deemed unnecessary to say more here than merely to refer to it.
It follows logically from what has been said that no duty devolved upon the defendant, though found to exist in answer to question 7, to warn plaintiff of the danger. For somewhat analogous cases see Dougherty v. West Superior I. & S. Co. 88 Wis. 343, 60 N. W. 274; Dahlke v. Ill. S. Co. 100 Wis. 431, 76 N. W. 362; Faber v. C. Reiss C. Co. 124 Wis. 554, 102 N. W. 1049; Rahles v. J. Thompson & Sons Mfg. Co. 137 Wis. 506, 118 N. W. 350, 119 N. W. 289; Ladwig v. Jefferson Ice Co. 141 Wis. 191, 124 N. W. 407; Brotzki v. Wis. G. Co. 142 Wis. 380, 125 N. W. 916; Brown v. Conners, 149 Wis. 403, 135 N. W. 857.
That the answers to questions 5, 6, and 9 are not inconsistent is decided and clearly shown in the case of Campshure v. Standard Mfg. Co. 137 Wis. 155, 118 N. W. 633. Assumption of risk and absence of contributory negligence may co-exist. The former relates to the assumption by the plaint*540iff of a risk already in existence at the time it is assumed; the latter, to conduct on his part that increases an existing risk, or creates or contributes proximately to a new one.
The court should have changed the answer to question T from Tes to No, and, upon the verdict so changed, rendered judgment for defendant.
By the Court. — Order reversed, and cause remanded with directions to change the answer to question 7 from Yes to No, and, upon the verdict so changed, to render judgment for defendant.
The following opinion was filed December 12, 1912:
Timlin, J.This is an appeal from an order granting a new trial on the ground that the special verdict was inconsistent. There is no question, I think, but that the findings of the special verdict are inconsistent with one another, but the majority opinion disposes of the case on the merits and orders judgment for the defendant on the theory that the undisputed evidence shows assumption of risk.
I cannot assent to this disposition of the case, but think the order appealed from should be affirmed.- The statement of facts in the majority opinion is correct and need not be here repeated except in one particular, and that is the point upon which the case turns.
The two “boards” mentioned in the majority opinion upon which the legs of the “horse” rested were planks three inches thick and twenty feet long and probably twelve inches wide. They projected eighteen or twenty inches east of the easterly joist, and the legs of the “horse” rested on them eight inches or a foot east of the east joist. (East is toward the high end of the “horse” to which the hoisting tackle was fastened; west, to the low end of the “horse” which was tied down to a joist with a rope.) When this is added it is not quite so obvious that these “boards” would tip up in hoisting a piece of *541timber weighing 350 to 400 pounds. We must bear in mind that tbe burden of proof is upon tbe defendant, and omissions ' in tbe evidence count in favor of tbe plaintiff. Tbe appliance bad been in use several years, although it was new to tbe plaintiff. There is evidence that be bandied and adjusted it as directed by tbe superintendent and that be bad hoisted into place with it one joist with safety, but while hoisting tbe second one be was injured by one of these planks tilting up and swinging sidewise and striking him. Upon these facts and at common law no negligence of tbe defendant was shown, but defendant’s negligence results from tbe statute, sec. 1636 — 81 (Supp. 1906: Laws of 1901, cb. 257). Now tbe assumption of risk is found on tbe foregoing facts by tbe majority opinion notwithstanding this burden of proof and notwithstanding tbe plaintiff testified be did not know of this danger and notwithstanding that no member of this court can now say without making experiment that 350 or 400 pounds, or rather one half of that weight, would tilt up a three-inch twenty-foot plank with a leverage of eight inches •or a foot. It is not even shown of what timber these planks were, nor is there any estimate of their weight nor of the weight which would be required to uptilt the plank when applied eight inches or one foot from the fulcrum, seventeen and one-half feet of the plank projecting on the other side of this fulcrum. It is also noticeable that only one of the planks tilted up and swung around, and that there is affirmative evidence that the tilting and swinging of this was caused by the hoisting crew on the lower floor pulling sideways, thus making a case of an appliance condemned by statute with negligence of fellow-servants contributing to cause the injury. The defendant introduced this plaintiff to the appliance in question, which had been used by defendant for several years' as a derrick or hoist. The defendant’s superintendent states that he instructed the plaintiff in general language to fasten down the rear end of the contrivance. Plaintiff denies this *542and claims be was instructed to fasten down with a rope the lower end of the so-called “horse.” This it is admitted he did.
Mr. Justice KbkwiN, I am authorized to say, concurs in this dissent.
Upon motion of the respondent a rehearing was granted on March 11, 1913, and the cause was again argued on May 3, 1913.
Eor the appellant there was -a brief by Flanders, Bottum, Fawsett & Bottum, and oral argument by C. F. Fawsett.
For the respondent there was a brief by H. M. Sheets, H. J. Piper, and Jared Thompson, and oral argument by Mr„ Piper.
The following opinion was filed May 31, 1913:
Siebecker, J.The plaintiff at the time of injury was working for the defendant as a carpenter and was assisting in the construction by defendant, as independent contractor, of an addition to the Power & Mining Machinery Company’» plant at the village of Cudahy. Detailed statements of the facts of the case were made by the court, and in the opinion of the dissenting justices, when the case was determined on appeal by this court on December 10, 1912, to which we make reference to avoid unnecessary repetition (ante, p. 533, 138 N. W. 1016)., Upon motion by the respondent a reargument of the case has been had, and upon re-examination of the questions presented we are satisfied that in our former conclusions-the law was not correctly applied to the case and that the order of the circuit court granting a new trial must be affirmed. Upon the former consideration of the case the court was led to a conclusion which disposed of the case upon the merits, upon the ground that under the evidence it appeared, as a matter of law, that the -plaintiff had assumed the risk of the hazard and for this reason he had established no cause of action.
*543Plaintiff rests bis case on tbe rights and liabilities as defined by see. 1636 — 81, Stats., which provides that:
“A person employing or directing another to perform labor of any kind in the erection, repairing, altering or painting of a house, building or structure shall not furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders or other mechanical contrivances, which are unsafe, unsuitable or improper, and which are not so constructed, placed and operated as to give proper protection, to the life and limb of a person so employed or engaged.”
The history of this law has been fully set forth in Koepp v. Nat. E. & S. Co. 151 Wis. 302, 139 N. W. 179. That the hoist in question is one of the appliances specified in the statute cannot be questioned. It was held in the Koepp Case that the legislature intended to make employers absolutely liable as to the safety of employees in the situation embraced in the statute, except when the injured person assumed the risk or was guilty of contributory negligence. The court there adopted the declaration of the court in Gombert v. McKay, 201 N. Y. 27, 94 N. E. 186, as expressive of the legislative purpose, which was in substance that:
“It in terms absolutely forbids those employers to furnish or operate or cause to be furnished or operated any apparatus therein mentioned of the character and quality described by it. It, in its effect, provides that any employer who either personally, or by another, furnishes for the performance of any named labor a forbidden article, shall be responsible therefor.”
In applying this law to the instant case it is of controlling importance to keep in mind that the defendant is forbidden to furnish a hoist which is unsafe, unsuitable, or improper and to so place and operate it as not to afford the employee proper protection to his life and limb. The question whether the hoist was suitable, safe, and proper, and whether it was so placed and operated as to give proper protection to the *544employees engaged in tbe erection of tbe building, was negatived by tbe jury. Tbe jury also found that plaintiff did not know and comprehend tbe danger of using tbe boist in tbe condition it was, and that tbe plaintiff, in tbe exercise of ordinary care, ought to have discovered and appreciated tbe danger attending its use. This court, as above stated, upon tbe original' bearing of tbe case considered that, upon tbe facts and circumstances shown by tbe evidence, it must be held, as a matter of law, that tbe plaintiff ought, in tbe exercise of ordinary care, to have known and appreciated such danger and hence be assumed tbe risk. There is evidence tending to show that tbe plaintiff followed tbe direction given him to tie the plank to which tbe hoisting tackle was attached to a joist with a rope and that be did this in tbe manner directed by defendant’s superintendent, and that be placed tbe planks supporting tbe horse, bolding tbe plank with' tackle, as directed and as they bad been placed to boist tbe first joist, which was successfully accomplished. It also appears that tbe plaintiff bad not operated this boist before this morning and bad only observed tbe operation of raising one joist, and that be bad had no experience with a boist like this one, though be bad worked at hoists, used for this purpose, of different construction. He testified to tbe effect that be attempted to place tbe legs of tbe horse, supporting tbe hoist plank, near tbe joist on which tbe two planks supporting tbe horse lay, or a little ahead of it, but that be did not measure it; that be intended to place it a little forward — eight inches or a foot. He also states that be thought everything was all right so long as it worked right; that be did not understand it could tip over as it did, and that be did this work and set up tbe boist and fastened it as directed. Tbe horse was supported by three-inch twenty-foot planks. Tbe weight of tbe joist to be raised was estimated at from 350 to 400 pounds. There is also evidence that tbe men at tbe rope below, doing tbe hoisting, pulled sideways instead of directly downward, *545■and that the accident was caused by the plank on the side toward which this pulling was done tilting np at the rear end, swinging around, striking the plaintiff, and knocking him off from the girder he stood on, causing him to fall to the bottom of the building. True, there is also evidence showing that the plaintiff knew how the apparatus was constructed and how it was being operated. This, however, does not indisputably establish the fact that the dangers incident to operating the hoist were so open and obvious that a reasonably prudent person, under the circumstances, ought to have appreciated and observed them. We are persuaded that the record presents a state of facts from which fair-minded men may honestly draw different conclusions, and that the question of the plaintiff’s contributory negligence or his assumption of the risk, under the evidence, is of such uncertainty as to present questions for determination by the jury. This conclusion is supported by the trial court on its submission of these issues to the jury, because he concluded there was room in the evidence for conflicting inferences. Re-examination of the case has convinced us that the trial court’s ruling on this question was right and that our, former conclusion, holding that the record shows the plaintiff assumed the risk as a matter of law, is erroneous.
It is contended that the trial court erred in submitting to the jury the question whether or not defendant, in the exercise of ordinary care, ought to have warned the plaintiff of the unsafe conditions under which the hoist was being operated, upon the ground that the pleadings in the case presented no such issue. The court submitted this issue to the jury and they found against the defendant on the question, and also that such failure to warn was the proximate cause of the injury. It appears that the plaintiff’s attorneys, after the evidence had all been received, requested that the complaint be amended to conform to the evidence in this respect. The court did not then specifically rule on the matter requested; *546Rut stated, that he would do so, and then proceeded to submit the issues as if the pleading were so amended, and subsequently treated the case as though the amendment were allowed. This course of procedure must be considered equivalent to allowing the amendment. It is considered that the question was properly included in the verdict. Upon this question (No. 7 of the verdict) the court instructed the jury that the employer “must warn him [plaintiff] of all dangers to which he will be exposed in the course of his employment, except those which the employee may be deemed to have foreseen as necessarily incident to his employment or which may be open and obvious to a person of his experience and understanding.” By their answer the jury found it was the defendant’s duty to give the plaintiff warning of the dangerous condition of operating the hoist as it did. By questions 5 and 6 of the verdict the jury found that the plaintiff, in the exercise of ordinary care, ought to have known and appreciated these dangers. The jury found that the hoist furnished by the defendant was not safe, as required by the statute, and that such unsafe condition proximately caused the injury. These facts render the defendant liable unless it be found that plaintiff either assumed the risk or was guilty of contributory negligence. The vital issues of fact, therefore, were whether or not the plaintiff had assumed the risk or had been guilty of contributory negligence. It is clear there is an irreconcilable conflict in the facts found by the jury in their findings under questions 5 and 6 and question 7, as pointed out by the court. If the danger was so open and obvious that plaintiff ought to have appreciated it, then, as the court instructed the jury, the defendant was under no obligation to warn the plaintiff. The trial court so held and for that reason properly awarded a new trial of the case.
By the Court. — The order appealed from is affirmed.
Barnes and Vinje, JJ., dissent.