Samulski v. Menasha Paper Co.

• Decision Date: 14 November 1911
• Citation: 133 N.W. 142,147 Wis. 285
• Parties: SAMULSKI v. MENASHA PAPER CO.
• Court: Wisconsin Supreme Court

147 Wis. 285

133 N.W. 142

SAMULSKI

v.MENASHA PAPER CO.

Supreme Court of Wisconsin.

Nov. 14, 1911.

Syllabus by the Judge.

A shaft 6 feet or so long, was located about 2 1/2 feet from the floor. A 14 in. x 7 inch tight and a companion loose pulley were thereon near one end and a 4 foot 500 pound iron disk on the other, having on the out face knives fastened thereto by bolts projecting through about 2 inch shoulders on the back and there held by burrs. Other 2 inch fan shaped projections were on the back. The disk, at the back, was cased 6 inches therefrom and around the rim a hand hold being therein for use in removing knives as necessary. The whole weighed some 800 pounds. At speed, it turned 700 times per minute by a 30 foot x 6 inch belt from a line shaft below. The belt was kept on the loose pulley, as desired, by a stick placed close under and near the opening between the pulleys, resting on the belt box between two nails driven therein on the up side of the belt at one end and against one nail driven therein on the opposite side of the box and down side of the belt toward the tight pulley, and the belt being shifted to the loose pulley, the shaft would turn some five minutes preventing for then removal of the knives. The stick being in position, as on the particular occasion, the belt would not shift. Plaintiff, the operator, had a hand and arm injured while attempting to loosen the burrs. The disk continued to move for a time then stopped and remained so, all things being in proper position. Some 3 minutes were accounted for between plaintiff's shifting of the belt and the injury. He said the disk stopped theretofore and thereat suddenly started. It had never before done so under the particular circumstances though plaintiff thought it could. The Court approved a jury finding that a loose belt and inefficient prevention of automatic shifting caused the injury. Plaintiff took judgment, the Court refusing judgment for defendant notwithstanding the verdict. The following pictorially represents the machine: [See page 143.]

Held, that the following legal principles apply:

If there is fair room on the evidence for diverse conclusions as to the ultimate fact in a legal action, which is right is for the jury, and reasonable doubts as to whether the case is within the province of the court or that of the jury should be resolved in favor of the latter.

Under the foregoing, the decision of the trial court should not be overruled except upon its appearing by the record to be manifestly wrong.

The testimony of a witness or finding of a jury, contrary to manifest physical situations, common knowledge, or conceded facts, is efficiently impeached thereby.

A physical fact, existent as matter of common knowledge or established by evidence beyond room for fair controversy, cannot be overcome by human testimony, opinion or theorizing.

The verdict of a jury to be warranted, must be grounded on reasonable certainty as to probabilities arising from fair consideration of the evidence, not on conjecture or guessing, or possibilities.

The party on whom the burden of proof rests not being able by evidence to remove the case from the field of conjecture into that of probability, with greater certainty than to leave one to choose between equally strong conflicting probabilities, no jury question is raised.

Stability of trial determinations is of such importance, reasonable doubts should be resolved in favor thereof, technical defects be ignored and errors however numerous or plain or inexcusable, passed as inconsequential unless, manifestly, had they not occurred, the result might probably have been materially more favorable to the party complaining.

If facts appear within the above rule rendering evidence from the mouths of witnesses to the contrary incredible, theorizing upon such evidence is mere conjecturing, not to be indulged in by trial courts even by their burdening the jury in respect to the matter.

In the circumstances stated, a case dependable upon conclusions inconsistent with verities, should be taken from the jury on motion and a verdict resulting contrary to such verities set aside and the case dismissed on request therefor.

On the facts fully established as indicated above in the light of the stated legal principles there was no legitimate basis for the vital findings in favor of the plaintiff and the verdict should have been corrected accordingly and judgment rendered thereon for the defendant.

Appeal from Circuit Court, Rusk County; James Wickham, Judge.

Action by Andrew Samulski against the Menasha Paper Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

IMAGE

Action to recover for a personal injury. The pleadings were as indicated by the following which the evidence established, or tended to.

Plaintiff, a man about 27 years of age of average intelligence and experience, while in the employ of defendant operating a machine, called a barker, was severely injured in his left hand and arm. The general nature of the machine was this: A heavy iron disk shaped wheel, about 4 feet in diameter, carried at the end of a shaft, there being on the outer and exposed face 4 knives about 8 inches long, fixed thereto and set out sufficiently to engage and plane off bark from blocks of wood when pressed against them for that purpose, which disk turned, when at full speed 700 or more revolutions per minute. Knives, from time to time, were required to be removed and sharpened. A cover over the back of the disk and some 5 inches therefrom forming a casing extending around but clear of the rim of the disk. An opening in the back of the cover sufficientlylarge to enable a person to insert his hand through and, with a wrench, turn off the burrs from the bolts holding the knives in place. Projections on the back side of the disk, standing out 3 to 4 inches rendered it exceedingly dangerous to so insert a hand for loosening the burrs without the disk being at rest. A shaft stationed some 2 1/2 feet from the floor. A tight and companion loose pulley 7 inches on the face and about 14 inches in diameter, by means of which and their connections the disk was operated--located on the shaft 3 feet or so from the back of the disk, such pulleys being far enough apart to clear each other and the tight one being nearest the disk. A drive belt some 30 feet long, 6 inches wide, of heavy leather, reaching the pulleys from the main drive shaft below the floor.

The disk, weighing some 500 pounds, in use, revolved with such velocity and force that, if, when at full speed, the belt was moved to the loose pulley it would continue to turn for some time. Upon moving the belt from the tight to the loose pulley to stop the machine, a piece of wood in the form of an ordinary broom stick, was laid on the boxing of the pulleys, which extended from the floor belt opening to within an inch, more or less, of the pulleys, and just under the clearance between them with the end on the up or slack side of the belt between two large nails, driven into the edge of the box far enough apart to receive it below the heads, they being bent in to prevent it from raising, materially, or rolling, and with the other end resting against a nail driven into the edge of the box on the opposite side, and on the side of the stick toward the tight pulley. The stick so placed, with the nails in position to retain it and properly performing their office, and the belt on the loose pulley, efficiently prevented such belt from engaging the tight pulley and giving motion thereto. In case of the nails, particularly either or both on the side of the stick toward the tight pulley, being bent over in such direction, the stick could roll somewhat and raise up a little, permitting the belt to creep toward the tight pulley, and possibly reach or engage it slightly. The stick could not raise up much as it only slightly cleared the pulleys.

Plaintiff, on the occasion in question, understood the mechanism of the machine, the use of the stick, as aforesaid, to prevent the drive belt from unexpectedly starting the disk to revolve, and danger of attempting to remove the knives while the disk was in motion. The nails on the up-side of the belt were bent over a little towards the drive pulley and spread sufficiently at the top to permit of the stick rolling or raising up a little. It could not raise to the top of the nails by reason of the interference aforesaid. Plaintiff had operated the machine for a considerable time and taken off the knives, as required. He knew the danger of starting to do it while the disk was in motion. On the particular occasion he placed the belt on the loose pulley, as usual, and put the broom stick in place. He testified that after the disk stopped revolving he inserted his hand, holding the wrench, through the opening to loosen the knife bolt. In such circumstances there had never been an unexpected starting of the disk to revolve either in his experience or that of any other person. As he was in the act of loosening a burr the disk suddenly started, catching his hand and causing the severe injury complained of. The belt was somewhat loose, as was claimed, allowing it to raise a little, intermittently, and move a little from side to side on the pulley. It touched the stick on the downward side of the belt but not on the upward side. Immediately after the accident the stick was found in place, the belt on the loose pulley and the disk still moving. Two or three minutes thereafter it came to a rest without any change in the belt or stick. Plaintiff, as he testified, just before he proceeded to loosen the knife bolts, complained to the foreman about the belt being too loose, was requested to proceed, and given assurance that the belt would be fixed.

The cause was submitted to the jury, resulting in these findings in addition to those relating to the injury and the amount of damages: The belt was running on both pulleys when plainti...