Fleming v. N. Tissue Paper Mill

• Decision Date: 28 January 1908
• Citation: 135 Wis. 157,114 N.W. 841
• Parties: FLEMING v. NORTHERN TISSUE PAPER MILL.
• Court: Wisconsin Supreme Court

135 Wis. 157

114 N.W. 841

FLEMING

v.NORTHERN TISSUE PAPER MILL.

Supreme Court of Wisconsin.

Jan. 28, 1908.

Appeal from Circuit Court, Brown County; Samuel D. Hastings, Judge.

Action by Lawrence Fleming, by guardian ad litem, against the Northern Tissue Paper Mill. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Action to recover compensation for an injury claimed to have been caused by actionable negligence of the defendant.

The negligence complained of was the act of setting plaintiff to work at a machine for cutting tissue paper without informing him of the danger to be faced, knowing that he was wholly ignorant of the fact known to it that the cutter knife on the machine, in case of the machine being improperly adjusted or equipped or out of repair, was liable to make an unexpected downward movement to the table before which plaintiff was required to stand and on which in the course of his work he was required to place his hands so that in case of such movement the knife was liable to cut his hands.

It was alleged in the complaint that the machine was operated by a lever, and was so adjusted that when in proper condition, pressure upon the lever would set the mechanism in motion, connected with the knife causing it to descend to the surface of the table and go back to its former position and remain there till the lever was again pressed down; that under normal conditions the knife could not descend unless the lever was pressed down, and could not make a second downward movement till the lever was again so pressed, so the attendant, upon the knife going up to its position of rest, was safe in putting his hands under it for the purpose of removing paper cut by the last downward movement; that plaintiff when put at work did not know, and had no reason to know, that the knife would move otherwise than aforesaid; that on or about the day he was put to work the machine had become so conditioned on account of want of repair or proper adjustment or equipment that while plaintiff was in the due performance of his duties, the knife made a downward movement after the one immediately following pressure upon the lever, which second movement caught plaintiff's right hand and so wounded it as to cause him to lose four fingers of that hand.

The defendant answered, putting in issue all allegations respecting the cutter machine having been out of repair, or there having been any abnormal movement of the knife and pleading familiarity by plaintiff with the machine, and further pleading contributory negligence.

There was no question on the evidence but that plaintiff was wounded by the cutter knife descending upon his hand to the extent stated in the complaint. He testified that he pressed the lever down in the regular course of his employment, causing the knife to descend and that upon its going back to its place, where under normal conditions it would have remained till he again put the lever down, he reached under it to remove cut paper and the knife immediately descended, causing his injury. The only corroboration of his testimony was proof of an exclamation regarding how the injury occurred which he made immediately thereafter.

There was evidence tending to show that plaintiff was not familiar with the machine so as to have reason to expect any abnormal movement of the cutter knife such as caused his injury; that no information in that regard was given to him up to the time of such injury.

There was evidence by several witnesses to the effect that from the time the machine was put in operation in defendant's mill it had occasionally operated the same as plaintiff claimed it did on the occasion in question, and that the superintendent of the mill was notified thereof. The testimony was to the effect that from time to time upon the knife being put in motion, without the lever being pressed down a second time the knife would make a second or more downward movements and then go back to its highest point and stop and not move again except in response to a second pressure upon the lever. There was evidence to the effect that such an abnormal movement of the knife was impossible when the machine was in a proper state of repair and in proper adjustment, and evidence that the machine operated regularly before the accident and when tested several times thereafter, though nothing was done to change it from the condition it was in when the accident occurred. There was no evidence of any imperfection, except perhaps a slight wearing, or breaking off, of a small piece of a projecting casting on the under side of the lever, designed to be engaged by a casting on the shaft below upon the latter making a complete revolution, disengaging the mechanism transmitting power to such lower shaft which operated the knife, and a slight wearing off of one or two projecting points of such casting so designed to engage the one on the lever. There was some evidence that dirt gathering in the friction clutch set by the downward movement of the lever, or the machine not being properly oiled, or worn condition of such projecting parts, or some other undiscoverable cause might have prevented the friction clutch on the occasion in question from releasing, as it should have done, after one revolution of the lower shaft.

The driving shaft was armed with a clutch collar which by the downward pressure of the lever was moved against a shell pulley which was around a small friction pulley on the shaft with a steel band between the inner rim of the shell and the outer rim of the friction so adjusted, as upon such collar being pressed up by the downward movement of the lever, to tighten the steel band, which was theretofore loose, upon friction causing the lower shaft to put the cutter knife in motion, upon the driving shaft in the condition indicated, making a full revolution, causing the knife to make a full movement the casting designed to strike the upper part of the lever as aforesaid would come to its place, strike the projecting point upon the lever, throw it up, causing the clutch collar to move back from the shell pulley, disengaging the mechanism which pressed the band against the friction pulley, allowing such band, which was constructed to that end, to open sufficiently to cease transmitting power to the lower shaft and to put in play a brake so as to prevent the momentum of such shaft and its connections from causing any movement of the knife after such release.

It was absolutely necessary, in order that the knife should come to a rest after having descended and gone back to its highest point, that the steel band should open and become free from the friction pulley. Anything which would prevent such disengaging of the band would cause an abnormal movement of the knife, and anything which would prevent the brake from properly acting would be liable to cause the knife to overrun but not to make a full movement and then come to a stop. The tendency was in case of such an overrun for the knife to stay down till put in motion again by a resetting of the friction. Ordinarily upon the knife being put in motion the mechanism designed to raise the lever was bound to do it, automatically, upon one revolution of the driving shaft being completed, causing one full movement of the knife, and in case of the lever being so raised the mechanism was such that the clutch collar would, necessarily, be forced back and the steel band would necessarily cease to engage the pulley inside the shell, if everything was in proper adjustment.

The jury rendered the following verdict:

“1st Question: Was the plaintiff, while in the defendant's employ, on July 22, 1904, injured by having the four fingers on his right hand cut off by the knife on a paper cutter, which he was operating?

Answer: Yes.

2d Question: Were the plaintiff's fingers so cut off by the knife coming down a second time, after the plaintiff had last pressed the lever?

Answer: Yes.

3d Question: If your answer to the last question should be Yes, then answer this: Was said machine liable to get in a condition in which, when being used, the knife would come down to the table a second time, immediately following a single pressure of the lever, and then thereafter continue to work all right?

Answer: Yes.

4th Question: If you answer the 3d question Yes, then answer this: Did the defendant know that said machine was liable to get in such condition before the plaintiff was injured?

Answer: No.

5th Question: If you answer the 4th question No, then answer this: Had said machine so operated for such length of time that said defendant in the exercise of ordinary care should have known that said machine was liable to get in said condition before the plaintiff was injured?

Answer: Yes.

6th Question: If your answer to the 4th or 5th question should be Yes, then answer this: Did the defendant, at any time before his injury explain to and warn the plaintiff against the danger to a person using said machine for cutting paper rolls, from the liability of said knife to come down a second time after one push of the lever?

Answer (by the Court): No.

7th Question: If your answer to the 2d, 3d, and either the 4th or 5th questions should be Yes, then answer this: Was said defendant negligent in not explaining to and warning said plaintiff against said danger?

Answer: Yes.

8th Question: If you answer the last (7th) question Yes, then answer this: Was said negligence the proximate cause of the plaintiff's injury?

Answer: Yes.

9th Question: Was the plaintiff negligent in any particular which contributed to his injury?

Answer: No.

10th Question: At what amount do you assess the plaintiff's damages as the direct and proximate consequence of his injury?

Answer: Five thousand dollars. ($5,000.00).

11th Question: If you should answer the second question Yes, then answer this: Was a cause of said knife coming down the second time

____dirt on the friction clutch resulting from the machine not being...