Greenberg v. Whitcomb Lumber Co.

• Decision Date: 23 April 1895
• Citation: 90 Wis. 225,63 N.W. 93
• Parties: GREENBERG v. WHITCOMB LUMBER CO. ET AL.
• Court: Wisconsin Supreme Court

90 Wis. 225

63 N.W. 93

GREENBERG

v.WHITCOMB LUMBER CO. ET AL.

Supreme Court of Wisconsin.

April 23, 1895.

Appeal from circuit court, Shawano county; John Goodland, Judge.

Action by August Greenberg against the Whitcomb Lumber Company and Parlan Semple for personal injuries. Plaintiff appeals from an order sustaining the demurrer of Parlan Semple to his complaint. Reversed. Defendant Whitcomb Lumber Company appeals from an order overruling its demurrer to plaintiff's complaint. Affirmed.

The duly-verified complaint, omitting formal parts, is as follows: “The above-named plaintiff, by Mylrea, Marchetti & Bird, his attorneys, for a complaint alleges and shows to the court: First. That defendant the Whitcomb Lumber Company, at all the times herein mentioned, was, and still is, a corporation organized under the laws of Wisconsin, and doing business at Whitcomb, Shawano county, Wisconsin, where, among other things, in its business it operated a certain machine for the purpose of sawing timber into firewood, which sawing machine consisted of a large circular steel saw, attached to a frame, and run by steam at a high rate of speed. That at all times herein mentioned said defendant Parlan Semple was an officer of said defendant company, and as such officer, as plaintiff is informed and believes, had full charge, management, control, and supervision of said sawing machine and assigning of employés to operate the same, and caused the same to be built expressly for said company, and erected on their grounds and used in their business. That said sawing machine, as plaintiff is informed and believes, was dangerous, defective, and unfit for use, and of a dangerous and unsafe design and plan. That said saw was improperly, defectively, and insecurely fastened to the shaft upon which it revolved, all of which was well known to both of said defendants at all times herein stated, and for a long time prior to February 14, 1892. That on or about the 14th day of February, 1892, said plaintiff entered the employ of said defendant corporation as a common laborer, and was placed by said company at work about said sawing machine, and stationed by it in front of the same. That there was no barrier erected between said saw and the place where plaintiff was stationed, or guards of any nature or description, and that it was a dangerous and unsafe place in which to place a man to work. That said plaintiff was wholly inexperienced in work in sawmills, or about sawing machines, or any similar kind of work, all of which was well known to both of said defendants. That neither of said defendants gave plaintiff any instructions whatever as to the dangers attendant upon such work, or informed him of the dangerous construction of said machine, or the defective condition thereof, and that it was all unknown to this plaintiff until after the injury hereinafter mentioned. That on the 15th day of February, 1892, and the day after said plaintiff entered upon the performance of his duties as aforesaid, and while in the employ of said defendant company at the place designated by them for him to work, the said saw, by reason of its defective construction and defective and insecure fastening, while the same was revolving, became separated from the shaft to which it was fastened, and struck this plaintiff with great force upon his left arm and shoulder, and otherwise injuring his body, by reason of which plaintiff became for a long time sick and lame, and was prevented from prosecuting his work as a laborer or any work whatever, and suffered great bodily pain, and was put to great expense for medical assistance and other care, and that said left arm and shoulder have become permanently stiff, so that he is unable to use them for any manual labor, thus greatly impairing his ability to earn a living, all to his damage in the sum of ten thousand dollars. Wherefore plaintiff demands judgment against said defendants for the sum of ten thousand dollars and costs.” To this complaint each defendant interposed a separate demurrer. The demurrer of the...