Duffy, Senior Circuit Judge, Kiley and Fairchild, Circuit Judges.
FAIRCHILD, Circuit Judge.
Action for personal injury caused by an accident at a construction site in Wisconsin.*fn1 Defendant Nels Johnson Construction Company was the general contractor. Defendant Case Foundation Company was a subcontractor for the purpose of drilling caisson holes. Plaintiff Doyle was employed by Warzyn Engineering Company, which had been employed by the owner to inspect the caisson holes. Doyle is a soil technician.
Plaintiff Doyle inspected a hole which Case had drilled. He was injured while being lifted out of the hole by a drilling rig operated by Case. The rig has a vertical shaft, called a Kelly bar, which projects downward from a gear box. The gear box is about 5 feet above ground level. When a hole is being drilled, an auger is fastened at the lower end of the Kelly bar. The Kelly bar is used without the auger, at times, to lower a man into a hole, and lift him out. At such times a Kelly bolt is inserted through the Kelly bar near its bottom and the bolt projects on each side of the bar. Sometimes the man stands on the bolt as the bar is raised or lowered. Sometimes he grasps the bolt with his hands and hangs below it.
Doyle hung by his hands. As he was lifted out of the hole, he did not let go of the bolt until it was raised high enough to crush both his index fingers between the bolt and the gear box.
Plaintiff originally asserted that both Johnson and Case were liable to him, although he later moved for dismissal of Johnson. Case asserted that if it is liable to plaintiff, it is entitled to contribution from Johnson. The district court dismissed all claims against Johnson.
Plaintiff alleged that Case (and, originally, Johnson) had failed to furnish a safe place of employment. It is conceded that the construction site was a place of employment under sec. 101.06, Wis.Stats., the safe place statute, Johnson and Case were both employers, Johnson had the control typical of a general contractor, and Doyle was, as to Johnson and Case, a frequenter.
Plaintiff claimed (1) that Case violated an order of the industrial commission requiring a machine of this type to be guarded against this type of injury, (2) that Case violated another order forbidding the lowering and hoisting of men by any method other than by cage, ladder, or stairway, without first obtaining approval from the commission, and (3) that Case was negligent because the operator of the machine was inexperienced, and because he operated it carelessly when lifting plaintiff.
The district court found, as a matter of law, that Case had violated the two orders mentioned, and that such negligence was a cause of the accident. He concluded that the evidence presented a jury question whether Case was negligent in other respects. He submitted a form of special verdict, in which he had answered the first two questions in order to reflect his findings of causal negligence as a matter of law. The court instructed the jury that in answering the comparison question they were not to give any greater or lesser weight to the court's findings of causal negligence than they would give to similar findings made by them. The verdict returned read as follows:
"We, the jury in the above entitled action, having been duly impaneled and sworn to try the issues, find for our special verdict as follows:
"Question 1: At and immediately prior to the time of the accident, was the defendant Case Foundation negligent in that it had violated an order of the Industrial Commission of Wisconsin requiring that machine parts having a reciprocating or oscillating motion, such that a shearing or crushing hazard is created, shall be guarded, and in that it violated an order of the Industrial Commission of Wisconsin requiring approval by the Commission of any method of lowering or hoisting men in a caisson other than by a cage, ladder, or stairway?
"Answer: Yes (Answered by the Court)
"Question 2: If your answer to Question 1 is 'Yes', then answer this question: Was such negligence a cause of the accident?
"Answer: Yes (Answered by the Court)
"Question 3: At and immediately prior to the time of the accident, was the defendant Case Foundation Company negligent through its employees, agents or servants in the operation of the drilling rig involved in this accident, in ...