Chopin v. Combined Locks Paper Co.

• Decision Date: 13 December 1907
• Citation: 114 N.W. 95,134 Wis. 35
• Parties: CHOPIN v. COMBINED LOCKS PAPER CO.
• Court: Wisconsin Supreme Court

134 Wis. 35

114 N.W. 95

CHOPIN

v.COMBINED LOCKS PAPER CO.

Supreme Court of Wisconsin.

Dec. 13, 1907.

Appeal from Circuit Court, Outagamie County; John Goodland, Judge.

Action by Cecelia Chopin, administratrix of Michael Chopin, deceased, against the Combined Locks Paper Company. From a judgment of dismissal, plaintiff appeals. Reversed and remanded for new trial.

This is an appeal from a judgment of the circuit court for Outagamie county dismissing the plaintiff's complaint. Plaintiff is the widow of Michael Chopin, who was killed January 30, 1906, while in the employ of the defendant. Deceased was employed as “boss machine tender,” having a general supervision of the operation of four paper machines located upon the second floor of defendant's mill, in Outagamie county, Wis. These machines were operated by means of belts extending from pulleys upon a main shaft, 75 feet long, and from 4 to 8 inches in diameter, located upon the first or ground floor. This shaft ran north and south, and passed through metal castings fastened to perpendicular posts, or pillars, which held it some three feet above the floor. Iron collars were attached to the shaft at various places by means of set screws to prevent it from working back and forth in the castings. The opening in the floor through which the belts extended from the pulleys on the shaft below to the paper machines above permitted a view of the pulleys and shaft. While at work upon the second floor on the day in question, the general superintendent, Thompson, looking through the opening, discovered one of the employés trying to run the belt on one of the pulleys with his foot, and promptly instructed deceased to go below, and stop the work of putting on the belt in that manner, as he said it was dangerous. Deceased immediately went below, passed along by the shaft, and ordered the employés who were attempting to put on the belt to desist, stop the engine, and put on the belt with a rope, and almost instantly upon delivering this order was caught by a projecting set screw, wound around the shaft, and killed. The set screw in question extended beyond the surface of the collar about five-eighths of an inch, and had been placed there when the shaft was installed some five years prior. It was not visible when the shaft was in motion, and it appears from the evidence that it was the policy of defendant to have set screws counter sunk. It was established on the trial that deceased had charge of the paper machines upon the second floor, but whether he had charge of the shafting below and the inspection and repairs thereof is disputed. The negligence alleged is that at the point or place on the shaft opposite the suction pump where deceased was caught there was an iron collar attached to the shaft fastened by a set screw which extended from two-thirds to five-eighths of an inch beyond the surface of the collar, and that no guard or barrier had been placed around this set screw or shaft to protect employés in the mill from coming in contact therewith while in the performance of their duties, and that deceased had no knowledge of the existence of the set screw, and that defendant negligently suffered said shaft, collar, and set screw to remain in such unsafe and dangerous condition, and that deceased while in the discharge of his duties and in the exercise of ordinary care was caught and drawn around the shaft, and received injuries causing his death; that the injuries were caused by the negligence of the defendant in carelessly failing to warn deceased, and in failing to locate and maintain a suitable guard or protection around said collar, set screw, and shaft, and in negligently operating said collar, set screw, and shaft in an unsafe condition, and in negligently and carelessly failing to provide and maintain a reasonably safe and suitable place for employés while in the performance of their duties, and in failing to properly light that part of the mill in the vicinity of said shaft. After the evidence was in, the court directed a verdict for the defendant, and judgment was entered dismissing the plaintiff's complaint, from which this appeal was taken.Joseph Chopin (P. H. Martin, of counsel), for appellant.

Classon & Frank, for respondent.

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

The only errors assigned are (1) the admission and rejection of evidence; and (2) the direction of a verdict for defendant. These errors are considered together in appellant's brief. It is quite clear from the record that the court below was very technical in its ruling concerning the admission and exclusion of evidence, and committed error in that regard. Since the judgment must be reversed upon other and more obvious grounds, we shall refrain from discussing this assignment of error, believing that the questions involved under this head are not likely to arise upon another trial.

The important consideration is whether the court erred in directing a verdict for defendant. A verdict was directed upon the ground that the deceased was charged with knowledge of the dangerous...