Chopin v. Badger Paper Co.

• Decision Date: 25 October 1892
• Citation: 83 Wis. 192,53 N.W. 452
• Parties: CHOPIN v. BADGER PAPER CO.
• Court: Wisconsin Supreme Court

83 Wis. 192

53 N.W. 452

CHOPIN

v.BADGER PAPER CO.

Supreme Court of Wisconsin.

Oct. 25, 1892.

Appeal from circuit court, Outagamie county; JOHN GOODLAND, Judge.

Action by Joseph Chopin, by guardian ad litem, against the Badger Paper Company. Judgment for plaintiff. Defendant appeals. Affirmed.

The other facts fully appear in the following statement by WINSLOW, J.:

This action was brought to recover damages for personal injuries suffered by plaintiff while in the employ of defendant on the 12th day of February, 1888. On that day the plaintiff, being 18 years of age, was employed by defendant to work in some capacity about a paper machine in defendant's mill. Plaintiff claims to have been employed as a cutter boy, and defendant claims he was employed as back tender. Immediately after going to work he was sent by the foreman of the machine to oil the gearing, the machine being then in motion. The machine was what is known as a “double decker,” having two rows of unprotected cogwheels, about four feet in diameter, upon one side. Each one of the upper cogwheels is geared to work into two of the lower wheels. It was the bearings on this side of the machine which the plaintiff was sent to oil. Above each of the lower wheels was a triangular space something like a foot in width at the base, and tapering upwards to four inches in width. In this triangular space, and about ten inches inside of the face of the cogwheels, was the journal of a roller called a “dryer,” which carries the paper from cylinder to cylinder. This journal it was necessary to oil through a small hole in the journal box. The plaintiff was given a squirt oil can eight and one-half inches in length, and while oiling one of these journals his right hand was drawn between the upper and lower cogwheels, and so mangled as to require amputation. The complaint charged negligence in setting plaintiff at such dangerous work without experience, and without instruction or caution as to its dangerous character. The answer consisted practically of a general denial. A motion for a nonsuit at the close of plaintiff's testimony was overruled, and exception taken. The jury rendered a special verdict as follows: “First question: Was the plaintiff injured while engaged in oiling a paper machine in the paper mill of defendant? Answer by the Court: Yes. Second question: Was he so engaged in oiling said paper machine by direction of a person having control and direction of the work of the employes on said machine? Answer by the Court: Yes. Third question: Was the plaintiff of sufficient age, understanding, and experience in the business to comprehend the dangers incident to such work or employment? (To the submission of said question the defendant objected. Objection overruled. Defendant excepted.) Answer: No. Fourth question: If you answer the third question, ‘No,’ then answer this question: Had the plaintiff been sufficiently instructed or cautioned by the agents or employes of the defendant as to the danger of the work, so as to enable him to comprehend and understand it, prior to the accident? (This question was answered, with the consent of both parties, by the court, ‘No.’) Fifth question: Was the plaintiff, at the time the accident happened, using such care and attention in the performance of the work he was engaged in as an ordinary, prudent, and careful person of the same age, understanding, and experience would have used? (To the submission of said question the defendant objected. Objection overruled. Defendant excepted.) Answer: Yes. Sixth question: What amount of damages has the plaintiff sustained by reason of the injury? Answer: $5,000.” From judgment for the plaintiff, entered on such verdict, defendant appealed.H. D. Ryan, A. A. Nugent, and Nash & Nash, for appellant.

Wigman & Martin, for respondent.

WINSLOW, J., ( after stating the facts.)

The motion for a nonsuit was properly overruled. The basis of the motion was that plaintiff's own testimony shows that he comprehended and assumed the risk of the dangers incident to the work he was doing. The court would not have been justified in so holding. That the work of oiling this interior journal was one of considerable danger while the machine was in motion cannot be doubted. It is true, the testimony showed that the plaintiff had been employed about machinery for a number of years; that he had been employed as a cutter boy in another paper mill for more than a year before he went to work for the defendant, and had frequently oiled a paper machine while so employed. The machine which he so oiled, however, was what is known as a “single decker.” It had but one row of large cogwheels working together, and had no bearing surrounded by cogwheels, as was the bearing which the plaintiff was engaged in oiling. It is true, also, that the plaintiff testified that he saw the triangular place between the wheels where he must insert his hand with the can, and knew that if his hand was caught between the wheels it would be crushed, and that he must not let his hand touch the wheels. It need scarcely be said that any boy of a dozen years of age who had ever seen cogwheels at work would know that his hand would be injured if thrust between the cogs, but it is evident that knowledge of the probable result of the insertion of the hand and appreciation of the risk or possibility that his hand might be accidentally drawn between the wheels are two entirely different things. The court rightly held that the question whether the plaintiff, from his previous experience with machinery, should have comprehended the risk, so that warning or instruction by defendant was unnecessary, was a question to be settled by the jury. We shall not review the many cases cited by appellant's counsel where courts have held that the evidence conclusively showed comprehension of the risk involved, and consequently that warning was unnecessary. No two cases are alike in their facts. In this case we are satisfied that the question was properly for the jury.

2. The third question of the special verdict submitted to the jury was the question whether the plaintiff was of sufficient age, understanding, and experience in the business to comprehend the danger. In connection with this question the jury were charged as follows: “In answering that question it has been conceded by counsel, and, whether it had been or not, is the fact, as appears from the uncontradicted evidence, that the plaintiff was of sufficient age, so far as the question of age is concerned,--the plaintiff was of sufficient age, to enable him to perform the duties which he was called upon to perform. And so with regard to his understanding or his general...