Deisenrieter v. Kraus-Merkel Malting Co.

• Decision Date: 28 January 1896
• Citation: 66 N.W. 112,92 Wis. 164
• Parties: DEISENRIETER v. KRAUS-MERKEL MALTING CO.
• Court: Wisconsin Supreme Court

92 Wis. 164

66 N.W. 112

DEISENRIETER

v.KRAUS-MERKEL MALTING CO.

Supreme Court of Wisconsin.

Jan. 28, 1896.

Appeal from superior court, Milwaukee county; J. C. Ludwig, Judge.

Action by Martin Deisenrieter against the Kraus-Merkel Malting Company for personal injuries. From a judgment for defendant, plaintiff appeals. Reversed.

The defendant is a domestic corporation engaged in the business of malting grains. It had and operated a malting house at Milwaukee. On the third floor of that malting house was a machine which, in part, consisted of shafting and gearing, the latter being known as friction gear, consisting of two rollers working in contact with each other for the purpose of turning or regulating a spool, on which was wound a rope which was used to operate a scraper on the floor, for the purpose of stirring the malt upon the floor so that the air should pass through it, and of removing it to the elevator. The shafting and gearing were left open and unguarded, and were so located as to be in the front and in view of the person operating the machine. They were about four feet above the floor and about one foot in front of a lever which was used to regulate their use. They might be dangerous to the operator if he should become oblivious of their existence and situation, or if, by any misfortune, he should fall against them while in motion. In the process of malting barley, sulphur and salt are burned in the kiln room, with the purpose to have the fumes permeate the mass of the barley, for bleaching it and fitting it better for its ultimate use. These fumes penetrated to all parts of the building, and came to this room on the third floor through holes in the walls for the passage of belts, through crevices, and open doors. The operations in this room create dense dust as the barley is delivered into the room by carriers, is stirred upon the floor, and swept from the room by the scraper. The plaintiff was a brewer of beer, 42 years old. He had worked several months in this building and in the general business there carried on. He knew the building, and the processes of carrying on the business. He had worked in the different rooms and on the different floors. He was employed for general work about the business. Though he had been mostly engaged in moving the grain, on the floor, with a shovel, in the process of drying it, he had at least once been employed in operating this very machinery. On the day of his injury he was operating the machine described. The fumes of the sulphur and the pervasive dust became more intense and persistent of a sudden, so that, in a short time,--he thinks in about 10 minutes,--he was overcome by them, and fell. In falling his hand fell upon or was pressed against the rollers, was drawn in between them, and was crushed. These are, in brief, the facts which the evidence tends to establish. There was a special verdict, as follows:

“Special Verdict.

First question: Was the plaintiff, while in the employ of the defendant, injured in defendant's malt house, on July 28th, 1892? Answer by Court: Yes. Second question: Was the plaintiff overcome by fumes of burning sulphur and salt, by reason whereof he attempted to support himself on a chain, and when reaching for the chain put his hand into the rollers? Answer: Yes. Third question: If you answer the second question in the affirmative, did such sulphur fumes escape from the defendant's kiln into the place of accident? Answer: Yes. Fourth question: Did sulphur fumes escape from the kiln into the third story of the malt house, to the place of accident, in sufficient quantity to become dangerous to a person working there at the time of the accident? Answer: Yes. Fifth question: If you answer the second question in the affirmative, was there more fumes of sulphur at the time and place of the injury than was there usually, prior to the injury, while the plaintiff worked at the barley? Answer: Yes. Sixth question: If you answer the fourth question in the affirmative, did the plaintiff know the dangers resulting from the sulphurous fumes at the time and place of the accident? Answer: No. Seventh question: If you answer the fourth question in the affirmative, ought the plaintiff, in the exercise of reasonable care and prudence, to have known the dangers resulting from the sulphurous fumes at the time and place of the accident? Answer: Yes. Eighth question: If you answer the fourth question in the affirmative, were the dangers arising from the sulphurous fumes at the time and place of the accident one of the ordinary risks of plaintiff's employment? Answer: Yes. Ninth question: If you answer the eighth question in the negative, did the plaintiff assume the risk of the dangers resulting from the sulphur fumes at the time and place of the accident? Answer: _____. Tenth question: Was the plaintiff guilty of a want of ordinary care which contributed proximately to the injury? Answer: No. Eleventh question: Was the plaintiff guilty of a want of ordinary care in not abandoning the work he was engaged in at the time and place of the accident in time to avoid injury? Answer: Yes. Twelfth question: If you answer the fourth question in the affirmative, did the defendant know that sulphurous fumes escaped from the kiln into the third story of the malt house at the time of the accident? Answer: No. Thirteenth question: If you answer the fourth question in the affirmative, ought the defendant, in the exercise of ordinary care and caution, to have known that sulphurous fumes escaped from the kiln into the third story of the malt house? Answer: Yes. Fourteenth question: If you answer either the twelfth or thirteenth questions in the affirmative, did the defendant know that the sulphurous fumes escaping from the kiln into the third story of the malt house at the time of the injury were dangerous to a person at work at the place of the accident? Answer: No. Fifteenth question: If you answer either the twelfth or thirteenth questions in the affirmative, ought the...