Besnys v. Herman Zohrlaut Leather Co.

• Decision Date: 02 May 1914
• Docket Number: No. 76.,76.
• Citation: 147 N.W. 37,157 Wis. 203
• Parties: BESNYS v. HERMAN ZOHRLAUT LEATHER CO.
• Court: Wisconsin Supreme Court

157 Wis. 203

147 N.W. 37

BESNYS

v.HERMAN ZOHRLAUT LEATHER CO.

No. 76.

Supreme Court of Wisconsin.

May 1, 1914.

Dissenting Opinion, May 2, 1914.

Appeal from Circuit Court, Milwaukee County; Oscar M. Fritz, Judge.

Action by Louis Besnys against the Herman Zohrlaut Leather Company. Judgment of nonsuit and plaintiff appeals. Reversed and remanded for new trial.

Winslow, C. J., dissenting; Barnes, J., dissenting in part.

The plaintiff brought this action to recover damages for the injuries he sustained from the loss of a part of his left arm, in consequence of coming in contact with the knives on the cylinder of a Leidgen unhairing machine, which he was operating in the defendant's tannery. This is a power driven machine, having a revolving knife cylinder about 8 inches in diameter which travels backward and forward over the hide, which is placed over a rubber bolster or plat. It is operated by a lever in control of the person employed to operate it to remove the hair from hides in conducting the tannery business. The hide is thrown on the rubber bolster, which slants downward at an angle of 45 degrees and is about 5 feet wide, fastened at the top to a wooden beam by a cleat, and at the bottom to a board, and kept in tension by counterweights. The knife cylinder is carried by an arm at each end, to which is attached the mechanism which causes it to operate; it has a range of motion from a point about four feet above the top of the bolster and along the course of the bolster to the bottom.

The guarding device on the machine at the time of this accident consisted of a wooden piece 2 by 6 inches, which reached across the beam of the bolster at the upper end, to this was attached a wire lattice which ran to a wooden crosspiece 1 by 2 inches; this formed the upper edge of the guard; the three parts made the guard from 10 to 14 inches above the hide which rested on the upper end of the bolster. The hides were spread on the bolster when the knife cylinder and clamp and guard were raised to their highest and a stationary point; after the hides had been so placed the operator by means of a lever brought the clamp and guard and knife cylinder down to the upper end of the bolster, thereby clamping the hides to the bolster and starting the knife cylinder to revolving and to removing the hair; the knife cylinder revolved rapidly, scraping the hair from the hide as it moved down the bolster; the operator, by means of a lever, which extended through the frame at the back of the bolster and under the guard, controlled the up and down movements of the knife cylinder on the hide for the purpose of removing whatever hair remained on part of the hide on the bolster after the knife cylinder had passed over it.

It appears that the plaintiff was employed as an operator of this machine; that he had worked, running this kind of a machine, for a year in Red Wing, Minn., and that he fully understood its operation and how to run it. He had worked on this machine for the defendant for five weeks before the day of this accident. On the day of the accident, after having been at work for two hours in the morning unhairing hides, and while engaged in the operation of unhairing a hide on the bolster, he proceeded to put a part of the hide onto the bolster, from which the hair had not been removed so as to place these parts within the area of the running knife cylinder, by reaching over the guard and pulling the hide into place for this purpose. In his description of this process he testifies that he had his right hand on the lever controlling the knife cylinder, and his left hand resting on the upper crosspiece of the guard; that he observed a part of the hide was beyond the course of the knife cylinder and needed to be put within the field of its operation; that he reached over the guard to pull it up on the bolster so that the knives could act on the parts of the hide from which the hair had not been removed; that when he grasped the hide to pull it up, the knife cylinder was on the lower part of the bolster; that it started towards the top and caught the mitten on his left hand and drew his hand into contact with the revolving knives and cut it so as to necessitate amputation.

Upon the plaintiff's evidence the trial court held that: “In this case there is no testimony tending to explain or excuse as a matter of law the act of the plaintiff in deliberately putting his left hand into the zone of danger. His conduct in that regard constitutes a want of ordinary care proximately contributing to his injury.”

The court awarded judgment dismissing the plaintiff's complaint.

Rubin & Zabel, of Milwaukee (Horace B. Walmsley, of Milwaukee, of counsel), for appellant.

Williams & Stern, of Milwaukee, for respondent.

SIEBECKER, J. (after stating the facts as above).

The case presents for consideration to this court the questions: First. Does the evidence present a case wherein the defendant required or permitted or suffered the plaintiff to go or be in an employment or place of employment which was not safe by reason of failing “to furnish, provide, and use safety devices and safeguards, and to use such methods and processes reasonably adequate to render such employment and place of employment safe,” and “do everything reasonably necessary to protect the life, health, safety, and welfare” of the plaintiff? Sections 2394--48 and 2394--49. Second. If the defendant failed in its duty toward the plaintiff imposed on it by law, then can it avail itself of the defense of contributory negligence? And, third. Do the facts and circumstances shown by the evidence establish that the plaintiff was guilty of contributory negligence as a matter of law as determined by the trial court?

[1] It is contended by the defendant that the judgment of dismissal of the plaintiff's complaint can be sustained upon the ground that the evidence does not show that the defendant failed to perform any legal duty it owed the plaintiff under either the provisions of section 1636j or sections 2394--41 to 2394--71 inclusive, or under all of these statutes taken together. It is argued that the guard provided, as described in the foregoing statement, was in compliance with the demands of these statutes, and hence no default of the defendant exists in this regard. Treating the case as within the foregoing statutes, it is manifest the duty imposed on the defendant is that the place and the method of carrying on the process of manufacture in which the defendant is engaged shall be as safe as the nature thereof will reasonably permit as regards safety devices and safeguards, reasonably adequate methods and processes, and any other thing reasonably necessary to protect the life, health, safety, and welfare of the employé; nor shall the employer require, permit, or suffer an employé to go or be in any employment or place of employment which is not as safe as the nature thereof will reasonably permit. Roshalt v. Worden-Allen Co., 144 N. W. 650;Langos v. Menasha Paper Co., 145 N. W. 1081. Considering this case in the light of these duties, can it be said as a matter of law that the defendant performed its duties in these respects as imposed by the statutes? Does it appear that the defendant furnished a guard and safety attachment to this machine which met the requirements of the law? We find stipulated facts in the case, to the effect that “the machine on which the accident occurred might have had a guard of chicken wire placed across the arm which carries the gate or fastener, as it is called, so that a person could not reach over that gate and put his hand down onto the rubber plat while the gate or fastener was down clamping the hide in position for work, and that he could not put his arm over the gate in such a manner as to get it in contact with the knife cylinder, if there had been wire across the top. * * *” This tends to show pretty clearly that the guard provided was not as safe as the nature of the employment would reasonably permit. It is manifest that the court could not properly hold as a matter of law that the defendant had complied with all its legal duties imposed by the statutes. The language used in the case of Willette v. Rhinelander Paper Co., 145 Wis., on page 554, 130 N. W., on page 859, in speaking of similar statutory duties imposed by section 1636j, Stats., applies to the situation presented here. “The intent of the statute is that if an employer maintains a situation within it, which as an ordinarily prudent man he ought reasonably to apprehend may cause a personal injury to any of his employés in the discharge of his duty, he must hold himself...