
    Haefner, by Guardian ad litem, Respondent, vs. Batz Seed Farms, Inc., Appellant.
    
      September 14
    
    October 11, 1949.
    
    
      For the appellant there was a brief by Riley, Riley & Riley, and oral argument by Thomas Pierce and John L. Riley, all of Madison.
    
      George F. Lange of Madison, for the respondent.
   Hughes, J.

The trial court has the duty of giving the jury instructions adequate to enable it to intelligently perform its function. We are of the opinion that the failure of the court to give an instruction to the jury which would apprise it of the duty which the defendant owed to the plaintiff constitutes prejudicial error requiring a new trial.

The jury's finding that the defendant was negligent in the discharge of its duty toward the plaintiff is meaningless because no definition of the duty was given.

What test did the jury apply in measuring defendant’s conduct ? Under the safe-place statute an employer must furnish a place of work which is as free from danger as the nature of the employment will reasonably permit, and not merely a “reasonably” safe place, as at common law. Rosholt v. Worden-Allen Co. (1913), 155 Wis. 168, 144 N. W. 650; Baker v. Janesville Traction Co. (1931), 204 Wis. 452, 234 N. W. 912.

It was also error to admit the testimony with respect to the industrial commission orders. The determination of whether the operation was farming or an operation subject to safety regulation should have been made before rather than after receipt of such testimony.

Defendant contends that the negligence of the plaintiff is equal to or greater than the alleged negligence of the defendant. We are unable to agree with that contention. We are of the opinion that the testimony in this record presents issues for a jury under proper instructions of the trial court.

Other minor errors are assigned which we deem unnecessary to comment upon since a new trial is necessary and they will undoubtedly not recur.

By the Court. — Judgment reversed and cause remanded for a new trial.

Brown, J., took no part.  