Deisenrieter v. Kraus-Merkel Malting Co.

Decision Date22 October 1897
Citation97 Wis. 279,72 N.W. 735
PartiesDEISENRIETER v. KRAUS-MERKEL MALTING CO.
CourtWisconsin Supreme Court

OPINION TEXT STARTS HERE

Appeal from superior court, Milwaukee county; R. N. Austin, Judge.

Action by Martin Deisenrieter against the Kraus-Merkel Malting Company. Judgment for plaintiff, and defendant appeals. Reversed.

This was an action to recover compensation for damages alleged to have accrued to plaintiff by reason of actionable negligence of the defendant. The plaintiff was an employé of the defendant in the latter's malting factory in the city of Milwaukee, Wis., and had been such for a long time prior to the injury complained of. Part of the business of the factory consisted in treating barley with gases from burning sulphur and salt in a kiln arranged for that purpose. Plaintiff was familiar with that and with all parts of the factory, and the business, as conducted. On the day in question he and another employé were sent by the foreman, Piton, to work in a room on the third floor, which was separated from the kiln room by a brick partition in which there was a hole for a moderate sized belt to be operated through, from a pulley on the shaft hereafter mentioned, to a pulley in the kiln room. The work of plaintiff and his associate consisted in spreading barley over the floor, and, after it was aired sufficiently, to scrape it up by means of machinery and convey it to an elevator where it was carried to the kiln room. The machinery consisted of the following: A constantly revolving shaft across the end of the room towards the kiln, supported at a point about four feet above the floor by hangers attached to the wall; on such shaft a friction roll; above such shaft a short shaft carrying a spool about three feet long, and a friction roll, the latter being located immediately above the friction roll on the main shaft, and just clear of it when the short shaft was at rest; attached to the spool a rope and at the other end of the rope a scraper, so that when the shaft was in operation it would wind up the rope and draw the scraper on the floor; attached to the supports of the short shaft a rope which came down in front of the friction rolls to a point about two feet from the floor and was there attached to a lever, so that by pressing on the lever the upper friction roll would be lowered down to a contact with the friction roll on the main shaft, set the shaft carrying the spool in motion, and the scraper also, by the connections before referred to; suspended from a point above, and coming down to about the end of the lever was a chain, so located as to be somewhat in the way of the operator at the lever. Plaintiff's duty was to stand nearly in front of the rolls, and, by manipulating the lever, start and stop the scraper as desired in moving the barley. He was also required at times to guide the rope so as to keep it in place on the spool. The duty of his associate was to guide the scraper. While plaintiff was in the performance of his duties as aforesaid, it is alleged in the complaint, fumes of burning sulphur came into the room from the kiln in such quantities as to cause him to lose consciousness and to fall forward, whereby his hand was caught between the friction rolls and crushed so that amputation was necessary. The negligence alleged was neglect by the defendant to guard the friction rolls so as to prevent the person attending the machinery from being caught therein and injured; also having the chain suspended at a point where it tended to interfere with plaintiff's motions in the performance of his duties; also failing to warn plaintiff of the dangerous character of the machinery, and in allowing sulphur smoke and fumes to escape into the room in such quantities as to overcome persons there employed. The allegations of negligence were all met by the answer, and defense of contributory negligence was pleaded. Numerous exceptions were taken to the instructions given to the jury, referred to in the opinion. The jury found specially, among other things, that sulphur fumes escaped from the kiln into the place where plaintiff was working, in sufficient quantity to be dangerous to a person working there; that there were more fumes of sulphur at the time of the accident than were usually there at any time prior thereto, while plaintiff worked at the barley; that defendant, before the injury to plaintiff, had reason to know that sulphur fumes might escape from the kiln room to the place where plaintiff was injured, in sufficient strength to overcome a person at work there; that defendant, in the exercise of ordinary care, ought to have known that the sulphur fumes might escape from the kiln to the place where plaintiff was at work, in sufficient quantity and strength to be dangerous; that defendant, in the exercise of ordinary care, ought to have warned the plaintiff of the dangers attendant upon the work he was doing; that defendant could reasonably have anticipated that such an accident as the one which happened to plaintiff might occur from the fumes of sulphur escaping from the kiln; that plaintiff did not know such danger in sufficient time, by the exercise of ordinary care, to have avoided the accident; that the danger of being injured by the sulphur fumes, in the manner in which plaintiff was injured, was not one of the ordinary risks of his employment; that the escape of sulphur fumes from the kiln to the place where plaintiff was working, was not caused by the foreman, Piton, shutting down the damper in the kiln, and that Piton was not guilty of any want of ordinary care in the performance of his work; that in the process of treating barley the damper was customarily kept closed; that the defect in the lever did not contribute to produce plaintiff's injury; that he did not receive such injury accidentally; that defendant, in the exercise of ordinary care, could have prevented the escape of sulphur fumes to the third floor of the malt house, in such quantity as to overcome the plaintiff; that the friction gearing at which the plaintiff was working was so located as to be dangerous to employés when engaged in their ordinary duties; that the gearing could have been guarded without interfereing with the operation of the machinery, so as to have prevented plaintiff from being caught therein; that plaintiff did not have sufficient intelligence and experience to comprehend the danger in operating the machinery in which he was hurt; that such danger was so obvious and plain that a person of ordinary intelligence might have known and comprehended the same; that plaintiff was not guilty of any want of ordinary care which contributed primarily to the injury; that he was not guilty of any want of ordinary care in not abandoning the work in time to avoid the injury; that the proximate cause of such injury was the fumes of burning sulphur and salt, and the unprotected friction gearing; and that the compensation required to measure plaintiff's injuries is $5,000.

There was a motion made by defendant to set aside the verdict and for a new trial, because contrary to the evidence, and upon other grounds, which motion was denied. Thereupon judgment was rendered for the plaintiff upon the special verdict, from which this appeal was taken.Winkler, Flanders, Smith, Boltum & Vilas, for appellant.

Wheeler & Wheeler and O. T. Williams, for respondent.

MARSHALL, J. (after stating the facts).

The proximate cause of the injury on the evidence was a fact to be found by the jury. Questions were included in the special verdict bearing on the subject, and in respect thereto the court instructed the jury as follows: “The word ‘proximate’ is used there, and perhaps you ought to be informed as to the meaning of the word. It means the direct, the immediate, the near, cause, or the nearest cause--the direct cause of the...

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