Opinion
September 10, 1957 —
October 8, 1957.
APPEAL from an order of the circuit court for Ozaukee county: W. C. O'CONNELL, Circuit judge. Affirmed.
For the appellant there were briefs and oral argument by Fred R. Wright and Francis J. Demet, both of Milwaukee.
For the respondent there was a brief by Gerold Huiras of Port Washington, and Ralph E. Houseman of Grafton, and oral argument by Mr. Ralph J. Huiras and Mr. Houseman.
Action for damages for personal injury. Defendant appeals from an order denying his motion for summary judgment dismissing the complaint.
Plaintiff's complaint alleges that he was employed by defendant on defendant's estate and that while in the course of his employment he fell from a tree which he was attempting to trim with a power saw. The complaint alleges that the injuries which he then sustained were caused by defendant's breach of a duty to warn plaintiff of the danger inherent in the operation and to provide instruction, supervision, safeguards, and equipment adequate to render the employment and the place of employment safe.
Defendant filed an affidavit which included material parts of an adverse examination of plaintiff taken before issue joined, whereby plaintiff admitted that his employer, the defendant, had not ordered him up the tree, did not know he was going to work up there, and was not present at any time while plaintiff was so engaged. Plaintiff also admitted in the examination that he had never before attempted an operation such as the one in which he was injured.
Defendant submits that tinder the circumstances he had no duty to warn or to safeguard plaintiff in work which he had not directed or expected plaintiff to do; and that plaintiff's causal negligence in attempting to work up a tree with a power saw, in the manner set forth in plaintiff's complaint and the adverse examination, exceeded as a matter of law any negligence which could be attributed to defendant.
Plaintiff's affidavit in opposition stated that at the time of the injury he was a nineteen-year-old high-school student and had been employed for three years in service about defendant's house and grounds; that he was unfamiliar with the proper methods of cleaning out woods; that defendant specifically ordered plaintiff "to clean out the woods" and the accident occurred while he was obeying such order in the course of plaintiff's employment. The affidavit contains other statements regarding defendant's failure to instruct, warn, and safeguard plaintiff in it.
Summary judgment is to be granted only when it is perfectly plain that there is no substantial issue of fact to be tried. Prime Mfg. Co. v. A. F. Gallun Sons Corp. (1938), 229 Wis. 348, 281 N.W. 697; Fredrickson v. Kabat (1951), 260 Wis. 201, 50 N.W.2d 381; Parish v. Awschu Properties (1945), 247 Wis. 166, 19 N.W.2d 276.
If, then, it appears from the pleadings and affidavits in support of and in opposition to the motion that there is a substantial issue of material fact, defendant's motion was properly denied.
We think, first, that it is a question for court or jury whether defendant's order to plaintiff to clean out the woods might reasonably be interpreted by an employee of the age, experience, and intelligence of plaintiff to embrace the operation which plaintiff was attempting to perform. If this be answered in the affirmative, whereby it is determined that plaintiff was injured in the course of his employment, questions of defendant's performance of the duties of an employer at common law and under sec. 101.06, Stats. (safe-place statute) and the respective causal negligences of plaintiff and defendant, if any, with their comparison may well arise.
Other fact issues may be involved as the trial proceeds. For the present it is sufficient for sustaining the trial court that there is an issue of whether, as plaintiff asserts, he was injured while obeying an order of his employer or, as defendant contends, plaintiff's injury resulted from attempting on his own initiative to do work outside the scope of his instructions and authority.
By the Court. — Order affirmed.