Coolidge v. Hallauer

• Decision Date: 14 November 1905
• Citation: 126 Wis. 244,105 N.W. 568
• Parties: COOLIDGE v. HALLAUER.
• Court: Wisconsin Supreme Court

126 Wis. 244

105 N.W. 568

COOLIDGE

v.HALLAUER.

Supreme Court of Wisconsin.

Nov. 14, 1905.

Appeal from Circuit Court, La Crosse County; J. J. Fruit, Judge.

Action by Herbert J. Coolidge against Henry Hallauer. Judgment for plaintiff. Defendant appeals. Affirmed.

This is an action to recover damages for personal injuries. The defendant owned and operated a pearl button factory at La Crosse, and at the time of the accident, March 14, 1904, the plaintiff, a man 28 years of age, was an employé in the factory, and had been such for nearly three years. He operated a machine propelled by line shafting, known as a “Berry Sawing Machine,” which cuts out the button blanks from clam shells. This machine is somewhat similar in appearance to an ordinary lathe, and operates on much the same principle. The operator stands in front of it. At his left hand, and in front of him, is the sawing part of the machine, and at his right hand the pusher, or tailstock. The saw is cylindrical in form and set into a spool, and this spool is fastened into a chuck upon the end of a shaft, and this shaft revolves at a rate of from 400 to 500 revolutions per minute. This part of the machine is at the operator's left hand, and is, of course, connected by a band with the shafting. The pusher, or tailstock, is at the operator's right hand. The end of the pusher consists of a block inserted in a cylinder, connected with a screw, at the extreme outer end thereof, with a handle, which handle the operator grasps to adjust the distance which the block shall pursue from the cylinder. The cylinder holding the block is itself held in place by iron boxes. The machine is operated by placing the clam shell, which is held by the operator in his left hand, against the pusher, and by moving the pusher forward by means of a screw until the shell is forced against the teeth of the saw, the saw then perforates the shell, and the round blank thus cut off is forced into the cylindrical tube constituting the saw, and then passes down to some receptacle beneath the machine. In the operation of the machine the cylinder holding the block is liable to become loose from wear, and when so becoming loose the operator's duty is to cut away the pasteboard bushing in the boxes holding the cylinder, and screw up the screws upon the sides of the boxes tighter. After the bushing has all been cut away and the screws have been turned to their limit, if the cylinder becomes loose the machine is to be stopped, the boxes unscrewed, and new bushings put in by the foreman. In operating the machine, it becomes necessary about every 15 or 20 minutes, to “joint the saw”--that is, to even the teeth--and for that purpose the operator places a three-cornered file at the end of the pusher block and forces it against the teeth of the saw until they are properly evened. The plaintiff's testimony tended to show that the plaintiff was operating his machine on Saturday, March 12, 1904, and that the tailpiece, or pusher, became loose in the boxes; that he had previously taken out all of the bushings from the boxes and turned down the screws as far as possible, and that he notified the foreman during the forenoon of that day that the pusher was loose and he could not work with it, and asked him to fix it; that the foreman said: “You go on to work. I will fix your machine as soon as I get time”; that he went on with his work, relying upon the promise, and thinking that, if he was careful, he could operate the machine without danger; that he operated the same all day Saturday, and commenced to work again Monday morning, the machine not being repaired; that after working about an hour on Monday morning he proceeded to joint the saw, but as soon as he placed the file in position the saw cramped it, and the pusher dropped down on account of its loose condition and a piece of steel flew off and struck the plaintiff in the eye, resulting in its complete loss. The foreman denied that the plaintiff spoke to him about the machine, or that he made any promise to repair.

The jury returned the following special verdict: “(1) Was the machine furnished by the defendant for the use of the plaintiff reasonably safe for such use on the 12th day of March, 1904? A. No. (2) If you answer the first question in the negative, then did the plaintiff on that day notify the defendant of its condition and protest against further use thereof? A. Yes. (3) If you answer the second question in the affirmative, then did the foreman of the defendant promise to repair the same? A. Yes. (4) If you answer the third question in the affirmative, then did the plaintiff continue the use of such machine up to the time of the accident, relying upon such promise? A. Yes. (5) Did the plaintiff sustain the injury of which he complains on the 14th day of March, 1904? A. Yes. (6) If you answer the fourth question in the affirmative, then, under all the circumstances, did the plaintiff continue the use of the machine in question for a longer time than was reasonable to allow the defendant to repair the same? A. No. (7) If you answer the first question in the negative, then was the injury to the plaintiff the natural and probable result of the unsafe condition of such machine? A. Yes. (8) If you answer the seventh question in the affirmative, then, in the light of the attending circumstances, ought such injury to have been foreseen by a person of ordinary care and prudence? A. Yes. (9) Did the plaintiff fail to exercise any ordinary care which contributed to his injury? A. No. (10) If you find that the plaintiff was injured on the 14th day of March, 1904, then was such injury the result of a mere accident? A. No. (11) If the court shall finally determine that the plaintiff is entitled to recover, at what sum do you assess his damages? A. $7,000.00.” The defendant moved to set aside the fourth answer, and moved for judgment upon the verdict as amended, which motion was overruled, as was also a motion to set aside the verdict and for a new trial, and judgment was entered for the plaintiff upon the verdict, from which the defendant appeals.Vilas, Vilas, Jenner & Freeman, for appellant.

Higbee & Higbee, for respondent.

WINSLOW, J. (after stating the facts).

The jury found by the special verdict that the machine was not reasonably safe for use, and that the plaintiff's injury was not a mere accident, but was the natural and probable result of such unsafe condition of the machine, and should have been foreseen by a person of ordinary care and prudence. If the verdict stopped here, it seems that a judgment for the defendant would necessarily follow, because the plaintiff well knew the defective condition of the machine; but the jury went further, and found that a promise to repair the machine had been made by defendant's foreman, and that the plaintiff continued its use relying on that promise, that such...