De Bogart v. Marinette & Menominee Paper Co.

• Decision Date: 20 June 1907
• Court: Wisconsin Supreme Court
• Parties: VAN DE BOGART v. MARINETTE & MENOMINEE PAPER CO.

132 Wis. 367

112 N.W. 443

VAN DE BOGART

v.MARINETTE & MENOMINEE PAPER CO.

Supreme Court of Wisconsin.

June 20, 1907.

Appeal from Circuit Court, Marinette County; B. F. Dunwiddie, Judge.

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

This is an action to recover damages for personal injuries sustained by the plaintiff August 24, 1903, when she was 15 years of age and while in the employ of the defendant, where she had been at work in its paper machine room No. 1 as cutter girl about four weeks. The circumstances under which she was injured are stated in the brief of counsel for the defendant, to the effect that the machine upon which she was employed and upon which she was injured was provided with numerous rolls for conveying the paper and with slitters or knives for cutting the paper in desired widths. The slitters were circular knives, and were attached to shafts, known as “slitter shafts,” by means of collars and set screws. The number of slitters, usually from seven to nine, could be attached to the shaft, and in any desired position on the shaft, the relative position of the slitters depending upon the desired width of the paper to be cut, and the position of the slitters was frequently changed by loosening the set screw with a monkey wrench, and sliding the slitters along any shaft to the point desired. The slitter in question was second to the one nearest to the west end of the revolving slitter shaft, and was fastened with a square-headed set screw, which projected from three-fourths of an inch to an inch and one-quarter. The machine in question had two functions--one, to make paper in sheets, and the other to make paper in rolls. When on sheets, it was the plaintiff's duty to lay off the sheets of paper as they came from the machine. When on rolls, making the paper in a continuous roll, the plaintiff's duty was to watch the shavings made by the end slitter--that is, the slitter nearest the edge of the paper--to see that the shavings did not wind around the knives and shaft and clog the machine. If shavings were not falling down properly, it was the plaintiff's duty to go under the top rolls, and beneath the paper then being trimmed, and reach up and pull the shavings down with her hands. At the point where she went underneath, the slitter shaft referred to in the complaint was about 4 1/2 feet above the floor. When running on sheets, this slitter shaft revolved about 400 times a minute. According to the plaintiff and her witnesses, on the morning of August 24, 1903, she had been once under the machine to pull down the shavings, had come out again, and was talking with other girls, when her attention was again attracted to the fact that the shavings were not running right. She went beneath the machine again, stood in a stooping position, looking up at the shavings, and reaching up for them with her hands. At that moment the rapidly revolving set screw on the slitter in question caught her hair, which was dressed high on her head and in pompadour fashion, and drew her head against the shaft with great force, in flicting severe injuries. One witness says: “I was there when she was injured. I saw her pulling down the shavings. I saw the shavings roll over. I saw her go up and drop. She was almost in under the slitter shaft.” The plaintiff knew little about machinery. After she commenced to work, about three weeks of the time had been spent on sheets, and about one week on rolls. She did not at that time know what a set screw was; but she had been warned not to get her fingers caught by the knives, but had not been told anything about set screws. There is considerable testimony in the record relative to a so-called “guard” which had formerly been on this machine, and which had been removed. It served merely as a brace or girth for the purpose of sustaining the sides of the machine and the machine itself from vibration; a mere support for the machine itself to keep it in position and prevent vibration. There was another machine which did heavier work in which the bar mentioned had been left, but the machine on which the plaintiff worked made lighter paper, and this girth had been removed from the machine years before the accident.

The nature of the injury sustained, as stated by the attending physician, was a lacerated wound on the left side of the head, about an inch or an inch and a half in diameter, a fracture of the skull, portions of the skull being driven down into the brain, and the membranes were ruptured where it was driven through. There was a ragged, contused wound in the scalp, but whether it was torn in any place the witness could not say. The doctor trephined and lifted the fractured bone and removed it. There was extensive hemorrhage at the time which was controlled and dressed antiseptically. She was in the hospital six or seven weeks. The operation was one usually performed for that injury. The wound was healed all right, got nice results so far as the healing of the wound was concerned, but the bone will never form. Nature has filled up the space with scar tissue. Previous to the injury the plaintiff was in good health and mentally normal. Since the injury she has suffered intense pains in the head almost continuously, and seems to go almost mad with the pain. She becomes terribly nervous and even violent, suffers greatly in the night, and is a constant care to her mother, and at times she is in what is called the “third stage of epilepsy,” which developed and was due to the injury to the head, and will probably continue growing worse until insanity or death results.

There is evidence tending to prove that the set screw might have been countersunk without impairing the efficiency of the machine, and also to the contrary. There is also evidence tending to prove that the slitter shaft, with an unguarded set screw that projected 1 1/4 inches revolved so fast that the set screw could not be seen, and only 4 1/2 feet from the floor and directly over the plaintiff's head where she had to do her work. At the time she was injured Paul Seivert, who assigned her work to her and told her how to do it, was looking right at her, and he admitted that she was then in the discharge of her duty, doing her work, when reaching up with her hand to pull the shavings down; that on that morning she wore her hair tight to her head and in pompadour fashion. She was warned when reaching up for the shavings to be careful not to get her fingers caught in the knives, but had never been told of the projecting set screw. She knew nothing of set screws, or any danger that might arise from them on a rapidly revolving shaft. She was doing her work pulling down the shavings and watching the slitter knives on the west end slitter, and in this situation, when under the shaft and set screw, she was seen to be lifted and dropped to the floor. She was injured by the set screw on the second slitter from the west end. The machine was then on rolls, and the shaft and set screw were in rapid motion. The shavings were running into the paper and hard to control. The machine at the time of the injury was in the same condition that it had been since the taking out of the girth or bar, and during the entire time for three years prior to the injury the same kind of set screws were in use. From one to five years before the injury those employed had worked under the machine in question, pulling the shavings away, and during that time it was the custom to use for that purpose a cutter stick--a plain stick about 1 1/2 feet long, and used principally to straighten out the piles of paper when they were working on sheets--but there was no testimony of any custom to use the cutter stick at the time the plaintiff was injured, nor that it was the custom even when those employed were at work under this machine to use the cutter stick when the shavings went into the paper. The bar or girth, which was taken out of the machine some years before the time of the injury, extended through the machine, and was from eight to nine inches in a direct line below the slitter shaft. There is not much power required to hold a slitter on that shaft for that work. The thickness of one-eighth to one-fourth of an inch of iron of that kind would hold it. The machine in question was a type not in common use in 1903. In the machines in common use at that time the slitter shaft was 1 1/2 feet higher from the floor than in this machine.

Issue being joined and trial had, the jury at the close thereof returned a special verdict to the effect (1) that the plaintiff's hair did catch on the set screw used to fasten the second slitter from the west end of the machine to the shaft, thereby causing the injury complained of; (2) that the place where the plaintiff was working at the time of her injury was rendered not reasonably safe by reason of the presence and condition of said set screw; (3) that the defendant was negligent in permitting said set screw to be and remain on said machine as it was; (4) that a man of ordinary intelligence and prudence, circumstanced as the defendant company's officers having charge of said mill were, at the time in question, reasonably ought to have foreseen that the presence of said set screw, as it was, might probably cause personal injury to an employé working about the machine; (5) that the plaintiff was not guilty of contributory negligence; (6) that a person of the plaintiff's age, intelligence, discretion, experience and judgment ought not, by the exercise of ordinary care, to have discovered and understood the dangers to which she was exposed while doing the work about said machine; (7) that they assessed the plaintiff's compensatory damages at $14,000.

From the judgment entered upon such verdict in favor of the plaintiff for the amount stated, the defendant brings this appeal.

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