De Bogart v. Marinette & Menominee Paper Co.

• Decision Date: 30 January 1906
• Citation: 106 N.W. 805,127 Wis. 104
• Court: Wisconsin Supreme Court
• Parties: VAN DE BOGART v. MARINETTE & MENOMINEE PAPER CO.

127 Wis. 104

106 N.W. 805

VAN DE BOGART

v.MARINETTE & MENOMINEE PAPER CO.

Supreme Court of Wisconsin.

Jan. 30, 1906.

Appeal from Circuit Court, Marinette County; Samuel D. Hastings, Judge.

Action by Jessie Van De Bogart, a minor, by Susan Van De Bogart, her guardian ad litem, against the Marinette & Menominee Paper Company. From a judgment for plaintiff, defendant appeals. Reversed.

This is an action to recover damages which plaintiff claims she sustained while in defendant's employ through defendant's negligence. The defendant is an incorporated company and owned and operated a paper mill at Marinette at the time the injury is alleged to have been done. The plaintiff was employed by the defendant in June, 1903, and was injured on August 24th, following. She was 15 years of age and had actually worked as a cutter girl at one of defendant's paper machines for four weeks before the day of the accident. The operating parts of this machine were held and supported by a frame, on which rested numerous rolls for carrying paper and shafts for the attachment of circular slitters or knives for cutting paper into different sizes. The slitters were movable upon the shafts, and permitted of adjustment on it for cutting sheets of paper of different sizes. They had collars at the point of attachment to the shafts, and the slitters were firmly held in place on the shaft by means of set screws through the collars. Plaintiff's duties consisted in working at and about this machine, either in laying off sheets of paper as they came from the machine, or in removing the paper shavings cut by the slitter next to the edge of the paper, so as to prevent them from clogging the machine and winding around the shafts and the knives. When engaged in removing the shavings her place of work was below the top rolls and slitters of the machine. The slitter shaft under which she performed this duty was about 4 1/2 feet above the floor on which she stood. In performing this duty it was necessary for her to incline her body somewhat, and to reach up with her hands to pull down the shavings. When the slitters were in motion they revolved with such rapidity as to prevent one from seeing the set screws which projected from 3/4 to 1 1/4 inches out of the collars. Plaintiff was not required to be under this part of the machine when it was not in operation and motion, and she had not observed or seen the slitters and set screws when the machine was not in operation. She did not understand the different parts of the machine, or the relationship of one to the other, nor did she observe them aside from what came to her notice generally in performing her particular duties while the machine was running. She understood the nature of her duties and that there was danger in working about machinery. She had been instructed that in removing the paper shavings there was danger of getting her fingers cut by the slitters, but aside from this she knew little about the machine and she testified that she did not know what a set screw was. The first three weeks of her employment she was engaged in receiving and piling up sheets of paper, and during the week before the accident she worked “on rolls,” attending to the removal of the paper shavings. While so engaged “on rolls” she would be under the machine while actually removing shavings. At other times she stood away from the machine in a position from which she could observe the shavings. On the day of the accident she assumed her duties, working “on rolls.” After having removed shavings in the usual manner and while standing beside the machine talking with others, she observed that the shavings failed to leave the slitter as they should and she went under the machine to attend to them. She stood under the machine in a stooping position, looking up at the shavings and working with her hands to remove them from the end slitter, and while thus engaged her hair caught in the revolving part of the machine immediately above her, drew her against the slitter shaft and inflicted severe injuries. It appears that there was a depressed fracture back of the temple about an inch in diameter, the bone having been driven into the brain. No new bone has formed, but the wound is healed over and covered with cicatrized tissue. There is testimony tending to show that she suffers much pain and that since the injury she has fainting spells and is afflicted with sickness which she did not have before the injury. The case was submitted to a jury which rendered a special verdict, finding in effect: (1) The plaintiff was injured by having her hair caught on a set screw attached to a revolving slitter and shaft. (2) That her working place was not reasonably safe on account of the presence of the revolving screw. (3) The defendant was guilty of negligence in permitting the set screw to be placed and used as it was, (4) That a person of ordinary intelligence and prudence should reasonably have anticipated that the set screw as used and applied, would likely cause injury to an employé working about the machine. (5) That a person of plaintiff's age, intelligence, discretion, experience, and judgment, in the exercise of ordinary care, would not have discovered and understood the danger to which she was exposed in her work. (6) The plaintiff was free from contributory negligence. (7) That she had suffered damages to the amount of $12,000. Defendant moved to set aside the verdict and for a new trial, because the verdict was contrary to the evidence and the law, and because the damages assessed were excessive, and that the answers to questions 1, 2, 3, 4, 5, and 6 be stricken out, and that the court answer them, re spectively, in the affirmative or negative, so as to find on each question the contrary to that of the jury. This motion was denied, and judgment was awarded the plaintiff for the damages found and for costs. This is an appeal from such judgment.Vilas, Vilas, Jenner & Freeman, for appellant.

I. B. Kirkland (Eastman & Martineau, of counsel), for respondent.

SIEBECKER, J. (after stating the facts).

It is urged that plaintiff assumed the risk of the negligence of which she complains as the cause of her injury. If she knew, or under the circumstances ought to have known, the danger of which she now complains as negligence, then she assumed the risk and cannot recover. There is no dispute but that she was in the proper place for the performance of her duty at the time of the accident. She had but little general knowledge of machinery and she did not understand the relation of one part to the others. She had no special knowledge of the construction and operation of the machine in question aside from a general impression that she gathered while observing it in operation. It appears that she did not know that set screws were used to fasten the slitters to the revolving shaft. So far as the...