Erdman v. Ill. Steel Co.

• Decision Date: 12 January 1897
• Citation: 95 Wis. 6,69 N.W. 993
• Parties: ERDMAN v. ILLINOIS STEEL CO.
• Court: Wisconsin Supreme Court

95 Wis. 6

69 N.W. 993

ERDMAN

v.ILLINOIS STEEL CO.

Supreme Court of Wisconsin.

Jan. 12, 1897.

Appeal from superior court, Milwaukee county; R. N. Austin, Judge.

Action by Julius Erdman against the Illinois Steel Company to recover for personal injuries. From a judgment for plaintiff, defendant appeals. Reversed.

The complaint alleges, in substance, that on the 22d day of February, 1894, plaintiff was in the employ of defendant as shear man; that his duties consisted in assisting in the operation of sawing and shearing heated bars and plates of iron by the use of a large circular saw, about four feet in diameter; that the saw was set in a frame, and so adjusted that, when in motion, by pressing on a lever, it could be lowered down upon the iron placed under the saw to be cut; that, before operations commenced on the day in question, the attention of the foreman was called to the fact that the saw was cracked, defective, and unfit for use; that plaintiff and his co-employés protested against working with the defective saw, but, relying on the assurance of the foreman that it was safe, and that he would furnish a new one after they had worked off one heat, they went to work; that soon thereafter, while plaintiff was with due care engaged at his regular duties, by reason of the aforesaid defective condition of the saw, it broke, and the shaft upon which it ran left its bearings, and fragments of the saw and the shaft struck plaintiff upon the body, by reason whereof he was wounded, bruised, his left leg was shattered, and he was otherwise severely injured. The injuries were set forth in detail, and damages claimed to the amount of $50,000. The answer of defendant admitted the allegation of the complaint respecting the employment of plaintiff and the injury, put in issue all other allegations, and alleged contributory negligence on the part of plaintiff. A special verdict was rendered, upon which judgment was entered in plaintiff's favor, and defendant appealed, basing such appeal on errors raised by exceptions, preserved in the record, which will be noticed in the opinion.

Van Dyke, Van Dyke & Carter, for appellant.

C. J. Faber and Austin & Fehr, for respondent.

MARSHALL, J. (after stating the facts).

The jury found specially, among other things, that the saw was defective, to the knowledge of John Blank, who was charged with the duty of seeing that it was kept in proper condition; that John Arndt was the acting foreman; that such foreman, with knowledge of such defect, directed plaintiff and his associates to run one heat, informing them that he would then have the saw changed; that plaintiff went to work, relying upon such promise; that defendant was guilty of negligence which proximately contributed to the injury; that plaintiff was not guilty of any such negligence; and that he did not have sufficient knowledge and experience to enable him to know the risk of working with the defective saw prior to his injury. The verdict was challenged as contrary to the evidence, and the ruling of the circuit court in that regard, among others, is before us for review.

That the saw was cracked and defective, to the knowledge of plaintiff, appears clearly from the evidence, and is alleged in the complaint. The proof shows that he was a man of large experience with such machinery, and that he had worked 14 years in the mill where he was injured, and 4 years in operating the machine where the accident occurred. His evidence, bearing on his knowledge of the danger, and his justification for working notwithstanding such danger, is substantially as follows: “There were small rollers to carry the iron under the saw. Then the saw was pulled down onto the iron. I had to stand alongside of the frame work. The frame was even with the plate. I had to shove the iron under the saw. I was about two feet from the saw when the thing happened. When I came to the mill that morning, Fred Glaesner said to me: ‘The saw is cracked. Look at it.’ John Arndt, the foreman, was standing there. I said: ‘John Arndt, will you change the saw?’ He said: ‘No; you will have to work one heat with it. It will take till about 10 o'clock.’ I relied on that, and went to work. He did not say whether it was dangerous, or not, that I know of. He said it was not dangerous. When they started, I was holding one end of the bar to be cut, Blank was holding the other, and Norton was handling the lever.” On cross-examination he said: “I had worked in the mill 14 years, and 4 years with the saw. There were four men at work with the saw besides Blank, the foreman. There was no one in the crew that had worked with the saw longer than I had, and only one as long. I looked at the saw after Glaesner said it was cracked. The crack was about two or three inches long. Nobody told me it was dangerous, or not dangerous, or said anything about that. The reason I asked Arndt if he was going to change the saw was, I saw a crack in it. I asked it because I wanted to change my coat, and I knew if he was going to make the change I would have time. I went to work because the foreman said it was not dangerous. I don't know that he had ever worked with the saw. I don't know as I objected to going to work. I don't think I did. I worked by the ton; so, if I had not gone right to work, I would have lost part of a day's wages.” John Norton testified, in substance, as follows: “Before we started up, Erdman told me the saw was cracked. I said to Arndt, ‘I think we ought to have another saw.’ He said, ‘You will have to try and work the heat off.’ That is all he said. The saw had started, but we had not commenced cutting. Erdman showed me the crack. It was about three inches long. It was open at the teeth. Erdman called my attention to it, and told me to bear down as gently on the lever as I could. I am sure of that. That is just as we were ready to saw the first bar. No one said anything in my hearing about its being dangerous, nothing of the sort. No one, that I know of, made any objection to going to work.” John Sanowa testified as follows: “Arndt, the foreman, said the saw should be changed when the heat was out. He said we should work that heat; that is all. I was there till the saw was started, and heard all that was said. Did not hear Erdman say anything to Arndt, or Arndt to Erdman.” Julius Blank testified as follows: “I told Arndt, before we started, that the saw was cracked. He said, ‘When the first heat is out, we will change it.’ He did not say anything further.” There was considerable other evidence on the subject, but nothing to vary the above, on which the jury found, in effect, that plaintiff neither knew nor ought to have known of the risk of working with the defective saw. A person 35 years of age, and of 14 years' experience with machinery, circumstanced as plaintiff was, must be presumed to know the operation of natural laws, and the dangers which such a defect as the one in question would naturally suggest to a person of ordinary intelligence. Walsh v. Railway Co., 27 Minn. 367, 8 N. W. 145. Otherwise, the risk that would attend the employment of labor in many manufacturing industries would be so great as to render it impracticable to carry them on. This presumption is too strong to be rebutted, so as to warrant a verdict to the contrary, merely by the evidence of the person whose knowledge is in question that he did not know of the existence of a danger which was obvious to a person of ordinary intelligence, even though not an expert.

But the verdict of the jury is not only wrong, tested by the rule above stated, but the evidence affirmatively shows, very clearly, that plaintiff was the most experienced man in the crew; that he knew more about the danger than Arndt; that the talk about changing the saw was, partly, at least, the result of a consciousness of such danger; and that, after such conversation was over, and the saw was started, plaintiff directed that it should be let down onto the iron with great care, on account of its condition. From all the evidence and circumstances, but one inference can reasonably be drawn, and that is that plaintiff knew of the danger as well as Arndt, and did not rely upon the judgment of anybody that it was safe to proceed with the work. The verdict of the jury in this regard is...