Gardner v. Paine Lumber Co.

• Decision Date: 13 December 1904
• Citation: 123 Wis. 338,101 N.W. 700
• Parties: GARDNER v. PAINE LUMBER CO., LIMITED.
• Court: Wisconsin Supreme Court

123 Wis. 338

101 N.W. 700

GARDNER

v.PAINE LUMBER CO., LIMITED.

Supreme Court of Wisconsin.

Dec. 13, 1904.

Appeal from Circuit Court, Fond du Lac County; Michael Kirwan, Judge.

Action by Philip Gardner against the Paine Lumber Company, Limited. From a judgment in favor of plaintiff, defendant appeals. Reversed.

This is an action to recover for personal injuries received by the plaintiff, November 23, 1901, while operating a machine called a “sticker,” in the planing mill of the defendant at Oshkosh, resulting in the amputation of his right hand. The plaintiff claimed negligence on the part of the defendant (1) in failure to instruct, (2) in furnishing insufficient light, (3) in defective adjustment of the machine, and (4) in absence of spouts to carry the shavings from the knives. It appeared by the evidence that the plaintiff was 26 years of age at the time of the accident; that his home as a boy was at Winneconne, in this state; that he went to school from the time he was 7 until he was 14 years of age, when he began to work at the barber's trade with his father, and continued at that occupation in various cities of the state, including Marshfield and Marinette, until the fall of 1899, when he cut wood all winter; that he continued at the barbering trade during the following summer, cut wood again during the winter of 1900-01, went to Milwaukee and resumed the barbering trade during the following summer, and in November, 1901, went to Oshkosh, and obtained employment as a common laborer at the defendant's planing mill on the 8th of November; that he at first piled lumber, tied pickets, and did other miscellaneous labor of this kind about the mill, and that about a week before the accident he operated a molding sticker like the one in question, except that it was furnished with shaving spouts, during one afternoon, turning out what is called “electric light molding”; that he had no other experience operating such machines; that on the day in question he was set at work putting strips, one inch square, through the molding sticker in question, and turning out moldings called “quarter round”; that after he had been at work about 20 minutes one of the strips stopped in its progress through the machine, and that he pushed or pulled a lever which he testified that he supposed stopped the machinery, and went around on the side of the machine and attempted to push the strip away from the guide by which he supposed it had been stopped, and his hand was caught and mutilated by knives revolving on what is called the “under head” of the machine.

The jury returned the following special verdict:

“(1) Excepting that plaintiff had operated a molding machine during half a day in the previous week, was he without any experience in doing that work up to the day of his injury? A. Yes. (2) Before the injury occurred, did defendant receive information from plaintiff to the effect that he did not know how to operate the machine? A. Yes, through Rathbun. (3) Did defendant fail to properly instruct plaintiff how to stop the motion of the heads which contained the knives in the machine? A. Yes. (4) Was the stopping of the quarter-round in the machine caused by defective adjustment of its parts? A. Yes. (5) Were all the incandescent lights extinguished in the mill when plaintiff was injured? A. No. (6) Was the light which was supplied for operating the machine at the time of plaintiff's injury insufficient to have enabled him to discover, by the exercise of ordinary care on his part, that there was in the machine an underhead which contained knives? A. Yes. (7) At the time of the injury, was the machine without any shaving spouts? A. By the court, by consent of counsel: Yes. (8) (Withdrawn by the court, and not submitted). (9) If the third, fourth, sixth, and seventh questions, or any one or more of them, be answered ‘yes,’ then, did the defendant fail to exercise ordinary care in relation to any one or more of the matters specified in those four questions and the answers thereto? A. Yes, 3, 4, 6, 7. (10) If your answer to the ninth question be ‘yes,’ then, in what matters referred to in the ninth question did defendant fail to exercise ordinary care? (See 3d, 4th, 6th, and 7th questions, and answers thereto.) A. In those matters or particulars which are specified in the third, did fail to properly instruct; fourth, by defective adjustment; sixth, light was insufficient; seventh, machine was without shaving spouts; questions and answers thereto. (11) If your answer to the tenth question finds that defendant did fail to exercise ordinary care in relation to any of the matters specified in that question, then, was such failure the proximate cause of plaintiff's injury? A. Yes. (12) Before plaintiff was injured, did he know how to stop the motion of the knives in the machine? A. No. (12 1/2) Did the plaintiff know, or would the exercise of ordinary care on his part, with such experience as he possessed, have enabled him to know, that the so-called underhead with its knives was a part of the machine? Answer. (a) Plaintiff did not know. (b) The exercise of ordinary care would not have enabled him to know. (13) Was plaintiff guilty of any want of ordinary care which contributed to produce his injury? A. No. (14) If the court shall be of the opinion that plaintiff is entitled to judgment in his favor, at what sum do you assess his damages? A. 7,000.00 dollars.”

Judgment was entered on this verdict for the plaintiff, and the defendant appeals.

Thompsons, Reed & Pinkerton (Chas. Barber, of counsel), for appellant.

Eaton & Eaton, for respondent.

WINSLOW, J. (after stating the facts).

The chief contention made by the appellant is that the undisputed testimony shows that the plaintiff was guilty of contributory negligence as a matter of law, and this is the only contention which we find it necessary to discuss. The discussion of this question necessarily involves a review of the facts upon the most favorable theory to the plaintiff which they will reasonably sustain.

The plaintiff was not a boy. He was a man who had reached the age of 26 years. He had attended school from his seventh to his fourteenth year, and then gone to work as a barber; he had pursued this trade in various cities in this state, a number of which were lumbering places, most of the time till the winter of 1899 and 1900, when he cut cord wood all winter, engaged in barbering again during the following summer, and in the following winter again worked at cutting cord wood. He was ordinarily intelligent and bright for a man in his walk of life; no...