Chybowski v. Bucyrus Co.

• Citation: 127 Wis. 332,106 N.W. 833
• Parties: CHYBOWSKI v. BUCYRUS CO.
• Decision Date: 23 February 1906
• Court: United States State Supreme Court of Wisconsin

127 Wis. 332

106 N.W. 833

CHYBOWSKI

v.BUCYRUS CO.

Supreme Court of Wisconsin.

Feb. 23, 1906.

Appeal from Circuit Court, Milwaukee County; Orren T. Williams, Judge.

Action by John Chybowski against the Bucyrus Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.

Appeal from the circuit court for Milwaukee county. Action to recover for personal injuries. Plaintiff complained that while in the employ of defendant, the latter failed to furnish him a reasonably safe place in which to do his work, in that his working place was in close proximity to a steam hammer so defective that it was liable to deliver two blows when only one was intended and without any manipulation of the controlling levers for the second strike and thereby cause the drift pin, used on the occasion in question, if moved out of its place or turned over by the first blow, to fly from its location under the hammer with great force, and to injure any person who might be within its range; that plaintiff was injured in that way, his right leg being fractured above the knee. Judgment was asked in the sum of $10,000. Defendant answered putting in issue all allegations in respect to the hammer being defective.

During the impaneling of the jury plaintiff asked defendant's counsel if a certain insurance company was not pecuniarily interested in the litigation. The latter objected to be so interrogated in the presence of the jury, and still further objected to be interrogated at all in his place as defendant's representative, and compelled to answer the questions. He was then called to the stand as a witness and sworn. The question was then repeated to him and, under protest, by order of the court he was compelled to answer, which he did in the affirmative.

The mechanism which it was claimed caused the injury consisted of a hammer weighing about 1,250 pounds, a piston rod, piston head and cylinder set in a vertical position with such connections that by a proper manipulation thereof the hammer could be caused to drop, striking whatever was on the hammer bed with its own weight accelerated by a steam pressure of from 70 to 90 pounds to the square inch and to rise again to its position and repeat the blow as often as desired, but only by manipulation of the operating lever. There were two levers. One was to control the steam as to turning it on or off from the boiler, and the other to control the application of the steam as to applying it below the piston head to raise the hammer, exhaust it to permit the hammer to fall, and to apply it above the cylinder head to add the force thereof of the gravity power of the falling weight.

There was no way by which the hammer could be raised to deliver a blow, except by drawing the steam lever and raising the operating lever. There was no way by which a blow could be delivered except by putting down the operating lever. If a blow was desired combining the falling weight of the hammer and the steam pressure also, that was accomplished by pressing down the operating lever while the steam was on. If a blow was only desired of the falling weight of the hammer, that was accomplished by shutting off the steam and putting the operating lever down. There was no automatic shutting off or on of the steam, or turning in of the steam above or below the piston head. Every movement of the hammer was positive following the appropriate movements of the operating lever and steam lever.

The evidence, in the main, was directed to the point of whether on the occasion in question the hammer struck two blows when only one was desired, or in other words, whether, the appliance being manipulated to strike one blow, two blows were delivered without any movement of the levers. There was evidence for the plaintiff by the boy who operated the levers on the occasion in question, and who had operated them for weeks prior thereto, that the hammer was accustomed to strike two blows when only one was desired, and to deliver the second blow without any change in the controlling lever; that he made complaint on several occasions to the boss of the department, who promised to fix the machine. He testified that if the levers did their work properly the machine could not work that way. He attributed the second blow of the hammer to some defect in the machine, but suggested no particular defect, and suggested no cause whatever except a leak of steam. There was other testimony on the part of plaintiff to the effect that a second blow might be caused when only one was desired by water in the cylinder, or by a leak of steam around the piston head where it entered the cylinder. The evidence on the part of defendant was to this effect: The hammer worked perfectly prior to the occurrence in question and thereafter. It was an utter impossibility for such a hammer to rebound after striking a blow and strike a second blow as testified to by plaintiff's witness; that such a movement would render the hammer worse than useless. The hammer could only be raised by turning on the steam and raising the operating lever letting steam in below the piston head. So long as the operating lever remained up and the steam on, it was an utter impossibility for the hammer to fall because the full pressure of the steam in the boiler would extend to the cylinder head. The cylinder head could not descend, allowing the hammer to drop without compression of the steam and back pressure on the boiler, which was an impossibility, the pressure customarily being 70 to 90 pounds to the square inch. The hammer after being raised by the steam pressure could not be made to fall otherwise than by shutting off the steam and dropping the operating lever. No movement of the hammer was possible except in response to proper movements of the levers mentioned, the one designed to turn on and off the steam and the other to apply it.

At the close of the evidence defendant's counsel moved the court to direct a verdict in favor of defendant. The motion was denied. The jury rendered a special verdict, finding, in effect, as follows: The steam hammer was out of repair, causing it to strike two blows when only one was desired, notwithstanding proper manipulation of the controlling levers by the hammer-boy. That defective condition of the hammer was the proximate cause of plaintiff's injury. The defendant, by the exercise of ordinary care, might have known of such defective condition of the hammer for a sufficient length of time before the accident to have remedied the same. The plaintiff was not guilty of any want of ordinary care contributing to the injury. $3,000 will be required to compensate him for his injury.

After verdict defendant's counsel moved the court to change the finding in respect to the hammer being defective and striking two blows when only one was desired, so as to negative any such condition, and by striking out the finding in respect to the hammer being defective, as claimed by plaintiff, and the defects having existed so long that defendant, by the exercise of ordinary care, might have discovered them a sufficient length of time before the accident to have remedied the same, and to give judgment in its favor of no cause of action. The motion was denied. The court then, on motion, rendered judgment in favor of plaintiff for the amount of damages found by the jury.

Hoyt, Doe, Umbreit & Olwell, for appellant.

K. Shawvan (Ryan, Ogden & Bottum, of counsel), for respondent.

MARSHALL, J. (after stating the facts).

In Faber v. C. Reiss Coal Company, 124 Wis. 554, 102 N. W. 1049, it was held that a juror may properly be interrogated upon the voir dire as to whether he is in the employ of or in any way concerned with any insurance company which is pecuniarily interested in the litigation, the examination being conducted in the presence of jurors already in the box and those not yet drawn, if thought best, and in such reasonable manner as not to place improper matter before them or suggest impropriety in the company's connection with the case. In other words, such examination is proper so long as conducted “strictly within the right” to discover the state of mind of the juror as regards the matter in hand or any collateral matter...