Before DUFFY, Chief Judge, and MAJOR and SWAIM, Circuit Judges.
Defendant Madison Gas and Electric Company was the owner and operator of a steel tower electrical transmission line located at Madison, Wisconsin. Defendant's only high voltage (69,000) system was 2.5 miles in length interconnecting the Wisconsin Power and Light Company's transmission system with defendant's Blount Street generating station.
In March, 1951, defendant contracted with Cassity-Richards, Inc. to paint the 36 towers and the dead-end structure of its high voltage system. The contract contained an indemnity clause under which Cassity-Richards, Inc. agreed to save defendant harmless from any claim on account of an injury to any of the former's employees. Plaintiff was an employee of Cassity-Richards, Inc. The Fidelity and Casualty Company of New York carried the Workmen's Compensation insurance for Cassity-Richards, Inc.
The painting of the towers commenced on July 16, 1951, with George Zehner as foreman of the crew. On August 14th, 1951, while painting one of the crossarms on a steel tower, plaintiff was severely shocked and burned. The Fidelity and Casualty Company paid, or is obligated to pay, Workmen's Compensation benefits in the sum of $23,515.83. Plaintiff sued defendant in a third party action, Wis.Stats. § 102.29, alleging violation of the Wisconsin Safe Place Statute, Wis.Stats. § 101.06, and applicable Safety Orders. The Court ordered The Fidelity and Casualty Company of New York, the compensation carrier, joined as an involuntary plaintiff. Defendant joined Cassity-Richards, Inc. as a Third Party Defendant because of the indemnity clause in their contract.
The cause was submitted to a jury upon a special verdict. The jury found defendant Madison Gas and Electric Company failed to furnish a place of employment for the plaintiff which was as free from danger to the life and safety of the plaintiff as the nature of the employment would reasonably permit, by failing to shut off the electric current flowing through either one or both of the lines at the time the crossarms were being painted by the plaintiff. The jury also found such failures was a cause of the accident and of plaintiff's injuries. The jury then found plaintiff was guilty of contributory negligence which negligence was a cause of the accident and of plaintiff's injuries. Under the Comparative Negligence law of Wisconsin, the jury apportioned the total negligence as follows: 25% to defendant Madison Gas and Electric Company and 75% to plaintiff. The jury answered the four subsections as to damages. As plaintiff's negligence exceeded 50% of the total negligence, the District Court rendered judgment for the defendant.
Plaintiff was an experienced industrial painter. He joined the crew which was painting the towers on August 13, 1951. On the following day he was shocked and burned on the first tower upon which he worked. These towers were sixty feet high, each with three crossarms. The top crossarm extended out four feet five inches, and the middle arm eight feet nine inches. The procedure for painting the middle crossarm was described by witnesses as follows: The painters got down on their bellies and crawled to the end of the arm underneath the conductor suspended from the top crossarm, there being a vertical clearance of two feet ten and one-quarter inches. The painters then worked their way slowly backward scraping and brushing; they then again crawled to the end of the crossarm and painted the arm as they inched backward. The middle crossarm was supported by two tension braces suspended down from the tower with one attached at the end of the middle crossarm and the other at a point about midway on the crossarm. A painter had to crawl around these braces on a space only six inches in width.
The painters knew the conductors were energized and dangerous. Plaintiff testified he suggested to his foreman Zehner that the circuit on one side of the tower be turned off while that side of the tower was being painted. Zehner replied he had conferred with defendant's agents who told him the lines must be kept open to Madison suburbs. Defendant could have de-energized both circuits while the dangerous parts of the towers were being painted, but to do so would have entailed an expense of about $160.00 a day for a period of six days. Defendant could also have de-energized one circuit at a time at a nominal cost. The testimony showed that subsequent to the accident, one circuit at a time was killed to permit painting the crossarms and the dead-end structure.
On the day plaintiff was injured he was observed working on the middle crossarm. Plaintiff recollects sitting down on this arm and then crawling out to the end. He had some difficulty with the tension braces and placed one leg behind the brace fastened about midway on the crossarm. As he inched his way backward scraping and brushing, and while in a prostrate position, plaintiff reached the point at which he had to move his leg from behind the brace. Apparently, while looking for the conductor overhead, he was burned, the current entering his body at his left ear. The foreman Zehner heard a loud crack and observed plaintiff in a raised position on the crossarm as though he were on his hands and knees. His head and shoulders were enveloped in an electrical flash or flame extending out some three to four feet.
Plaintiff suffered severe burns over 40% of his body. He survived three successive shock phases. The many weeks of treatments were extremely painful because plaintiff's condition was such that anesthetics could not be used during the treatment. He was in the hospital at Madison for four months, and was hospitalized in Chicago three times for plastic surgery. His hospital and medical bill amounted to $8,389.65.
This is a suit based upon diversity of citizenship and the substantive law of Wisconsin is applicable. The Wisconsin Safe Place Statute has given rise to much litigation. Prior to 1953 more than 160 cases involving that statute had been decided by the Wisconsin Supreme Court.*fn1
The defense of assumption of risk is not available to the occupant of the premises. Washburn v. Skogg, 204 Wis. 29, 233 N.W. 764, 235 N.W. 437. However, contributory negligence, as modified by the Comparative Negligence Statute, is still available as a defense. Prehn v. C. Niss & Sons, Inc., 233 Wis. 155, 288 N.W. 736; Umnus v. Wisconsin Public Service Corporation, 260 Wis. 433, 51 N.W.2d 42. The main area of applicability of the Safe Place Statute relates to "employees" or "frequenters" of "places of employment" or "public buildings." Due to the operation of the Workmen's Compensation Act, the Statute today concerns chiefly the business visitor who is not an employee of the occupant of the premises.
The Safe Place Statute requires an occupant of premises to keep the place of employment as safe as the nature of employment and the place of employment will reasonably permit. The Wisconsin Supreme Court has frequently stated this standard is more "stringent" than that imposed by the common law. Sparrow v. Menasha Paper Co., 154 Wis. 459, 143 N.W. 317; Saxhaug v. Forsyth Leather Co., 252 Wis. 376, 31 N.W.2d 589; Haefner v. Batz Seed Farms, Inc., 255 Wis. 438, 39 N.W.2d 386. That court stated the rule as follows: "The statute imposes an absolute duty to make the place as safe as the nature and place of the employment will reasonably permit. Performance of the common-law duty to make it reasonably safe does not suffice." Mullen v. Larson-Morgan Co., 212 Wis. 52, 57, 249 N.W. 67, 69.
The employees of an independent contractor are "frequenters" within the meaning of the Safe Place Statute requiring an employer to furnish a place of employment for employees and "frequenters" as free from danger as the nature of their employment and of their place of employment would reasonably ...