Helmke v. Thilmany

• Decision Date: 02 June 1900
• Citation: 107 Wis. 216,83 N.W. 360
• Parties: HELMKE v. THILMANY.
• Court: Wisconsin Supreme Court

107 Wis. 216

83 N.W. 360

HELMKE

v.THILMANY.

Supreme Court of Wisconsin.

June 2, 1900.

Appeal from circuit court, Calumet county, George W. Burnell, Judge.

Action by William Helmke, by guardian, against Oscar Thilmany, for injuries sustained by plaintiff while in defendant's employ. From a judgment of nonsuit, plaintiff appeals. Affirmed.

Winslow and Dodge, JJ., dissenting.

Wigman & Martin, for appellant.

Nash & Nash, for respondent.

CASSODAY, C. J.

This action was commenced September 9, 1897, to recover damages for personal injuries sustained by the plaintiff while in the employ of the defendant as a cutter boy in his paper mill at Kaukauana, March 31, 1896, whereby his right hand and arm were caught and crushed between the revolving cogwheels, and so injured as to render amputation thereof necessary three inches below the elbow. The grounds upon which the plaintiff seeks a recovery are that such cogwheels were unguarded, and unnecessarily and unreasonably dangerous, and because of the plaintiff's youth, inexperience, and lack of judgment, and the defendant's failure to instruct, warn, or caution the plaintiff against such danger. The defendant answered, by way of admissions, denials, and counter allegations, to the effect that the injuries sustained by the plaintiff were in consequence of his own gross carelessness and negligence, and were not the result of any negligence on the part of the defendant. At the close of the testimony on the part of the plaintiff the court granted a nonsuit, and from the judgment entered thereon the plaintiff brings this appeal.

The room in which the machinery was located was about 100 feet long from east to west, and nearly 36 feet wide. The paper machines and appurtenances ran from near the westerly end of the room towards the east, a distance of about 60 feet, and about 9 feet wide, and the southerly side of such line of machinery was about 16 feet from the south wall of the room, and constituted the front side of such machines, where several operators, including the plaintiff, were supposed to be when at work and the machines in operation. The machines were protected by being covered. There was no gearing nor cogwheel on that front side, and the plaintiff's work was to clean the machines and lay off the paper when it was running; that is, pick it up and lay it on the pile when it came from the cutter. The north wall of the room was a little over 11 feet north of the north side of the line of machinery mentioned. Opposite such machinery on the north side were four windows, each window 4 feet wide. Between such windows there was a space of about 10 feet of wall, and against such walls were closets 4 1/2 feet wide, and standing out from the wall 19 inches, in which the workmen placed their garments or clothing. The closet so occupied by the plaintiff was opposite about the middle of such line of machinery. From the door of that closet when closed to the north side of such line of machinery was 9 1/2 feet, and the same was open and free the whole distance, and was also open and free from the westerly end of such closet easterly for a distance of about 7 1/2 feet. From the closet east along the north wall of the building there was an open space of about 5 1/2 feet wide for passage. Five feet south of the north wall of the room, immediately west of the plaintiff's closet, was the face of a large cogwheel, 36 inches in diameter, and from the center of which was a shaft running to the paper machine mentioned. A small cogwheel on the east end of a shaft matched into the large cogwheel on the west side thereof, and on the face towards the wall. The center of the small cogwheel, as well as the large cogwheel, was 29 inches from the floor. At the time of the accident the plaintiff was caught between the cogs of the two wheels under circumstances hereinafter stated. Such is a brief description of the place of the accident.

At the time of the injury the plaintiff was 16 years and 6 1/2 months of age. He testified to the effect that he quit school when he was 12 years of age; that he then piled headings in a dry house in Marathon county for 100 days; that he then came back to Kaukauana, and went to work in Patten's Paper Mill, scraping screens in the pulp room; that he continued to work in Patten's Paper Mill for about two years or a little over; that in scraping screens he had to reach down in the bottom of the hopper and rake the bottom of it; that he did not scrape screens right along all the time that he worked in Patten's Paper Mill; that a part of the time he was wheeling wood, and then cleaning the roll on the pulp machine, to get the pulp off the roll, and in doing so he had to work near the machine; that he did not know how long he so worked removing the pulp from the rolls; that while at Patten's Mill he also wiped off the machine on the front side, and cleaned the floor when there was grease around; that in wiping off the machine on the front side he worked near the revolving cylinders or calendars, but there was no cogwheel on that side; that in cleaning up the grease on the floor he went on both sides of the machine,--the front and back sides of the machine; that on the back side he had to go among the gearing and wheels,--down under them,--upon his hands and knees, and wipe up the grease; that right on the side he had to reach down under the cogwheels, but he was very careful not to let his clothing get caught in the wheels, because he knew if it got caught there was danger of being crushed; that there were other boys about his age doing the same kind of work in the Patten Paper Mill; that whenever he got a chance he always went ahead, and worked himself up; that after a while he so worked himself up to the position of cutter boy in Patten's Paper Mill; that he worked as cutter boy in that mill for five weeks; that he put the paper off when it broke; that in doing so he had to get his hands near the calendars or rollers; that he pushed the paper into the rollers with his wrist, so that his fingers would not get caught; that the defendant's paper mill was about a half a mile from Patten's Paper Mill; that his father worked in the defendant's mill, and procured the position of cutter boy for the plaintiff in the defendant's mill; that the plaintiff commenced work in the defendant's mill at 7 o'clock on the morning of March 31, 1896, and relieved the night cutter boy, Reikel; that he hung his clothes in the closet mentioned, by direction of Reikel, before commencing work; that the machine tender, Nolan, directed him to sweep up behind the machine about 2 o'clock, but said nothing about being careful and not getting hurt; that he had already learned to be careful; that whenever he went near the machine he had it in mind to be as careful as he could, because he knew there was danger around those wheels; that if Nolan or any one else had told him to be careful around those wheels he would have told him to do something that he knew enough to do; that he went behind the machine three times during that day; that he hung his coat in the closet in the morning; that he got it at noon, and hung it in the closet again after coming back from dinner; that Reikel came to relieve him about half past 5 o'clock in the afternoon; that Reikel hung his clothes in the closet...