Blankavag v. Badger Box & Lumber Co.
| Decision Date | 29 September 1908 |
| Citation | 136 Wis. 380,117 N.W. 852 |
| Parties | BLANKAVAG v. BADGER BOX & LUMBER CO. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Wood County; Charles M. Webb, Judge.
Personal injury action by Frank Blankavag, by guardian ad litem, against the Badger Box & Lumber Company. From a judgment for plaintiff, defendant appeals. Reversed, and remanded for a new trial.
Plaintiff, a boy 16 years of age, was injured while at work on a recessing machine, planing out a recess in a board by shoving it over the top of a table in which is set a cutter head. The negligence alleged was that the machine was defective, unsafe, and out of repair, and the knives unguarded and contained no contrivance to prevent the operator being injured, which facts were known to defendant, but not to plaintiff; that plaintiff was inexperienced and ignorant of the danger, which was known to defendant, and was set to work without warning or instruction. The answer denies negligence and sets up affirmatively contributory negligence. The jury returned the following verdict:
“Q. 1. Did the plaintiff receive personal injuries of the character alleged while operating defendant's recessing machine at the time, place, and in the manner alleged? Answer: Yes.
Q. 2. What was plaintiff's age at the time of said injury? Answer: 16 years.
Q. 3. Was said machine so constructed as to be dangerous to one operating it with reasonable care, who was without previous experience in operating the same, and who had not been previously instructed as to how it should be operated? Answer: Yes.
Q. 4. If you answer question 3 ‘Yes,’ did the plaintiff at the time of the injury know, or in the exercise of reasonable prudence and care ought he to have known, that the machine was so dangerous? Answer: No.
Q. 5. At any time before the accident did the plaintiff understand and appreciate the precise danger to which he was exposed in operating the machine? Answer: No.
Q. 6. Ought the plaintiff, considering his age, intelligence, experience, and judgment, in the exercise of due care to have discovered and understood before the accident the precise danger to which he was exposed in his work of operating the machine? Answer: No.
Q. 7. Had the plaintiff, at any time before the day he was injured, done recessing upon the machine in question? Answer: No.
Q. 8. If you answer question 7 ‘Yes,’ then had plaintiff, before he was injured, done recessing with the guard or roller marked ‘G’ down, as shown on photograph, Exhibit 2? Answer: No.
Q. 9. If you answer question 3 ‘Yes,’ did defendant's superintendent, Vandenbrook, before plaintiff was injured, give plaintiff proper instructions or information as to how the machine should be adjusted and operated, so as to prevent accident and avoid danger? Answer: No.
Q. 10. If you answer question 9 ‘No,’ was such failure by defendant's superintendent properly to so instruct and inform plaintiff the proximate cause of the accident and plaintiff's injuries? Answer: Yes.
Q. 11. Did plaintiff in any respect fail to exercise ordinary care, which proximately caused or contributed to produce the accident? Answer: No.
Q. 12. In what sum do you assess the plaintiff's damages? Answer: $3,000.”
Motions for judgment in favor of the defendant on the evidence and to change the answers to the questions in the special verdict were denied, and judgment entered for plaintiff on the verdict, from which this appeal was taken.Kreutzer, Bird & Rosenberry (Goggins & Brazeau, of counsel), for appellant.
W. E. Wheelan, James L. Kelley, and John F. Kluwin, for respondent.
KERWIN, J. (after stating the facts as above).
1. Error is assigned because the court refused to render judgment for defendant upon the undisputed evidence and change the answers of the jury to the questions in the special verdict. This contention is based upon the argument that there was no evidence of negligence because of failure to warn and no evidence of any notice to defendant that the plaintiff did not in fact comprehend all that a person of his age and intelligence ought reasonably to be expected to know, and therefore there was no duty to instruct unless the defendant ought reasonably to have anticipated that the plaintiff would not know or ought not to be expected to know the danger. A discussion of the evidence under this head would serve no useful purpose. It is sufficient to say that we think there was ample evidence to carry the questions involved to the jury.
2. Error is assigned respecting the charge of the court on the ninth question of the special verdict. The ninth question reads: “If you answer question 3 ‘Yes,’ did defendant's superintendent, Vandenbrook, before plaintiff was injured, give plaintiff proper instructions or information as to how the machine should be adjusted and operated, so as to prevent accident and avoid danger?” Upon this question the court charged as follows: This charge was clearly erroneous, since it did not put the...
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Rase v. Minneapolis, St. P. & S. S. M. Ry. Co.
...inference. It is to be noted in this connection, however, that there is earlier authority as to this burden of proof. Blankavad v. B. B. & L. Co. (Wis.) 117 N. W. 852;Nadau v. White River Lumber Co., 76 Wis. 120-131, 43 N. W. 1135,20 Am. St. Rep. 29;Swoboda v. Ward, 40 Mich. 420-424. But co......
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