McCrossen v. Nekoosa Edwards Paper Co
In McCrossen v. Nekoosa Edwards Paper Co., 59 Wis. 2d 245, 208 N.W.2d 148 (1973), the Court determined that the failure to give the emergency instruction in a case involving a worker injured when he was exposed to poison gas was reversible error.
The supreme court observed that:
"While the emergency rule in Wisconsin has had its greatest development in the area of automobile accident cases, its application is by no means limited to negligence on the road. The earliest Wisconsin case applying the doctrine appears to have been Schultz v. Chicago & Northwestern Ry. Co. (1878), 44 Wis. 638, in which a railroad worker injured in a switchyard was given the benefit of the rule. More recently, in Ivy v. Tower Ins. Co., 32 Wis. 2d 231, 145 N.W.2d 214 (1966), the doctrine was considered in the context of an action brought by a construction worker who had been injured by a piece of concrete thrown from a backhoe."
(Id. at 259, 208 N.W.2d at 156.)
The supreme court also instructed:
"Whether plaintiff is entitled to application of the emergency doctrine depends on whether he negligently contributed to the creation of the emergency.... In such situation, where there is a jury question as to the cause of the emergency and the time element is so short as to make the doctrine otherwise applicable, a party is entitled to the emergency instruction and it is for the jury to determine its application." Id.