Foss v. Bigelow

• Decision Date: 14 March 1899
• Parties: FOSS v. BIGELOW ET AL.
• Court: Wisconsin Supreme Court

102 Wis. 413

78 N.W. 570

FOSS

v.BIGELOW ET AL.

Supreme Court of Wisconsin.

March 14, 1899.

Appeal from circuit court, Eau Claire county; James O'Neill, Judge.

Action by John K. A. Foss against A. A. Bigelow and others. There was a judgment for defendants, and plaintiff appeals. Affirmed.Richmond & Smith, for appellant.

Tomkins & Merrill, for respondents.

CASSODAY, C. J.

This action was commenced September 20, 1894, and is for personal injuries received by the plaintiff while helping to operate an edger in the sawmill of the defendants, August 15, 1891. Issue being joined and trial had, the court, at the close of the testimony, directed a verdict in favor of the defendants, and from the judgment entered thereon the plaintiff brings this appeal.

There is evidence tending to prove that the plaintiff was hired by the defendants' foreman and general superintendent in the spring of 1888; that he was a common, unskilled laborer, and had worked in the mill from the time he was so hired until he was injured; that his work until October, 1890, was that of “laying lumber,”--that is, standing at the end of the rollers that come from the east edger at the place designated and taking the lumber from the rolls and piling it on the trucks, to be wheeled away by another man; that about October 1, 1890, he was given the job of running the “little trimmer,” consisting of one saw at the east side of the mill; that he continued at that work the rest of that season, and from April or May, 1891, when the mill began work, until the time of his injury; that prior to October 1, 1890, he never had had any experience in running an edger or any other machine; that the trimmer was simply a saw located below the table, and operated by taking hold of a handle and drawing it up to cut off the ends of short boards; that the mill was a double mill, with two sets of machinery and men, the one on the east side and the other on the west side; that each side was practically complete in itself, consisting of the rotary saw, gang saws, edger, slab saws, or slashers, and trimmers; that to operate this double mill required a large number of men; that the logs were slabbed at the rotary saw, passed through the gang saw, edged at the edger, and passed along the rollers to the trimmer; that the slabs from the rotary went to the slab saws, and were cut into four-foot lengths; that an occasional board from the rotary reached the edger; that from 90 to 99 per cent. of the lumber was cut by the gang saws, and from 1 to 10 per cent. came from the rotary saw; that the mill sawed about 250,000 feet of lumber daily; that if the edgermen failed to get the lumber off the skids as fast as it came down from the gang saws, and it got piled up there, it would be necessary to stop using the gang saws until they got the lumber cleared away; that the operation of the mill depended upon these edgermen keeping the lumber coming from the gang saw clear; that all of the lumber, excepting slabs, had to go through the edger; that the men employed to operate each edger were experienced, and each received $2.65 or $2.75 a day, while the plaintiff only received $1.65 a day; that this work of edging the lumber was so hard that the edgermen were compelled to change off several times a day; that the west side of the mill cut the small logs, making the work of the edgermen much more active; that the place was noisy; that at different times, when the edgermen or trimmers had to be away for a few moments, some one had to take their places; that after the plaintiff commenced working on the trimmer he was accustomed to do that work when they were away for a few moments; that these were the only men he ever “spelled”; that at the edger he always took the place of the man on the rotary side, and did nothing except to catch the boards that came from the rotary saw, and lay them on the edger for the other edgerman to...