Houg v. Girard Lumber Co.

• Decision Date: 31 January 1911
• Citation: 144 Wis. 337,129 N.W. 633
• Parties: HOUG v. GIRARD LUMBER CO.
• Court: Wisconsin Supreme Court

144 Wis. 337

129 N.W. 633

HOUG

v.GIRARD LUMBER CO.

Supreme Court of Wisconsin.

Jan. 10, 1911.

Dissenting Opinion, Jan. 31, 1911.

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

Action by Sigwart Houg against the Girard Lumber Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded, with directions.

Kerwin, Siebecker, and Timlin, JJ., dissenting.

Action to recover for a personal injury. Plaintiff pleaded that, while in the due performance of his duty as an employé of defendant, he was severely injured in his right foot by reason of its being caught by a revolving shaft, armed with a sprocket wheel, collar and projecting set screw, so located as to be dangerous to employés in discharge of their duties, unless securely guarded, and that no guard whatever was provided.

All material allegations respecting the circumstances of the injury were put in issue by answer.

On the evidence the main controversy was as to, whether the injury occurred by reason of plaintiff's foot having come in contact with the unguarded set screw or it being carried by the sprocket chain against the sprocket wheel and caught between them; whether such set screw was so located as to be dangerous, unless securely guarded or fenced, to employés in the discharge of their duties; and whether plaintiff was guilty of fatal contributory negligence.

The evidence was to this effect: Plaintiff was 42 years of age. He had worked in and around the sawmill where he was injured for years and was familiar with all parts of it, particularly the part where the accident occurred. He had been oiler for some months before he received the injury and had been many times in the place where he made the fatal movement. The particular work preceding such accident was oiling journals at the tightner frame. In doing this he had to ascend from the basement floor of the mill about 11 feet. The usual way was from the south side of the frames by a pair of stairs. Then there was a platform to step out upon, which reached nearly to the frame. In going that way one did not approach the region of the sprocket wheel. There were no interferences except what was caused, from time to time, by escape of sawdust and pieces of wood from a break in the east sawdust spout. Such a break happened from time to time, but was easily repaired by nailing on two or three small pieces of boards. It was but the operation of a few moments to do that. It was not particularly plaintiff's business to repair such breaks, but he was allowed to do it, as he saw fit, and on occasions did do it. Whenever repairs were needed the fact came specially to his attention, and he was particularly interested in the matter, unless he chose to approach the tightners from the north side. Some pieces of boards were off the side of the sawdust spout at this time. He gave as a reason for not replacing them, that he did not think of it, and said, in effect, that he chose to do his work by going up on the north side of the frames, though had it not been for the interferences coming from the hole in the sawdust spout he would have gone up on the other side. For a long time before he commenced doing the oiling, the only way in use of approach to the frames was from the south side. He was instructed in that regard. He used that way for a considerable length of time and then discovered and adopted the way he was using immediately before the injury.

The situation was this: There were two tightner frames in the basement story of the mill hung from the floor above and reaching down several feet. They were in a line east and west and about five feet apart. A little north thereof, parallel therewith and a little below them there was an eight-inch square timber. Projecting directly down from the main floor, just north of the timber and a little west of a line drawn at right angles with the west side of the east tightner frame there was a sawdust spout. East of the west tightner frame there was a similar spout. About midway between the two spouts on the eight-inch square timber the journal box of the sprocket wheel was located. It was eight inches long with and reached nearly across the timber, was about five inches high and had an oil cup in the top. Plaintiff was accustomed to oil at that point about once a week. The sprocket wheel was slow moving, the revolutions being about 24 per minute. The journal did not need oiling on the occasion in question. Plaintiff did not approach it for that purpose. The shaft was two inches in diameter, was short and ran north and south. It projected through the box to the north, somewhat. On the inner side of the box there was a two-inch wide collar kept in place close to the inner end of the box by a set screw projecting outward to within about two inches of the rim of the wheel. There was a little space between the inner edge of the timber and the south end of the box, which was cut out, thus making room for the collar to operate. It was inclosed largely in the south side of the timber. The sprocket wheel was fastened to the shaft about 1 1/2 inches from the collar, so the wheel was about 3 1/2 inches from the box, but only about 2 or 2 1/2 inches from the timber. It was 7 or 8 inches in diameter and 1 1/2 inches wide at the rim. It carried a sprocket chain made of links about three inches long and two inches wide. The projections on the wheel were about 1 1/2 inches long. They extended beyond the outer side of the links, as the latter engaged the wheel, and were rounded on the ends. The sprocket chain ran at an angle somewhat upward from the plane of the timber and to the east, so that at a point opposite the east tightner frame, the lower chain was a little above the lower cross timber thereof, and the upper chain, by reason of weight and slack, was practically on the lower one. The power was exerted on the latter which moved to the right, passing under the sprocket wheel a little below the level of the top of the timber. A ladder was provided for ascending to the place for oiling the journal, which was some 11 feet from the basement floor. Plaintiff in order to construct for himself a way of reaching the tightner frames and journal box placed, securely, a plank of sufficient width to enable him to walk on it, in a somewhat stooping position, on account of the floor above, about 14 inches north of the timber and on a level therewith. This plank spanned the space north of both tightner frames and the journal box, and was near enough thereto so that plaintiff, when standing upon it in front of either, could reach and grasp the side of the frame with his left hand, and holding his oil can in the right, step and partially raise himself to a standing position, on the lower crosspiece of the frame, in which position he would do the oiling. In the particular instance he placed his ladder against the timber at the east end of the plank. He then ascended to and stepped onto the plank and walked west to a point north of the east tightner frame. The sprocket chain was in operation. He passed his left foot over the chain to the lower crosspiece of the frame, taking a pretty long step in doing so, southward and upward. Grasping the east side of the tightner frame with the left hand he raised up so as to stand on the crosspiece, resting his whole weight on the left foot. He then put his left arm around the east side of the tightner frame, and there stood with his right foot backward and outward, the limb being outside of and near the moving sprocket chain, and did the oiling. That over, he endeavored to retreat by first placing his right foot on the timber just outside of and a little lower down than the chain. That not being feasible, as he thought; because of a frozen accumulation of sawdust on the timber, he passed his foot under the sprocket chain sufficiently to locate the toe thereof securely on the cross timber of the tightner frame. Then he lifted the left foot over the chain and gave it a location similar to that of the right foot. Thus he secured himself in place with the toes of his shoes resting on the tightner frame and the sprocket chain in motion a few inches above his feet and just in front of his lower limbs maintaining his equilibrium by leaning slightly forward and keeping a secure hold on the tightner frame. The next duty he had in mind to do was to oil the journals at the west tightner frame, located, as indicated, on the other side of the sprocket wheel. He could as readily have stepped back to the plank as he stepped from it, and proceeded to and down the ladder and then moved that west to the vicinity of the other tightner and thereby reached it without going near the sprocket wheel. That was the way he had ordinarily performed the work since he had chosen to approach the tightners from the north, instead of the south side. As he stood in the position aforesaid, there was a floor timber at his back which came down sufficiently to render it necessary for one, in reaching a tightner frame from the plank or the plank from a tightner frame, to bend down somewhat. He knew all the conditions surrounding him, particularly the fact that frozen sawdust was irregularly located on top of the timber near the sprocket wheel journal. He concluded not to return to the floor and reach the west tightner frame by means of the ladder, but to go along the plank, passing by the end of the sprocket wheel shaft, or along the timber and over the sprocket wheel box. Instead of stepping to the plank as he had stepped from it, he supported himself on the right by placing his hand or arm on the side of the sawdust spout, then--with his left hand grasping or left arm placed around the west side of the tightner frame, and so maintaining a substantially upright position, he reached his right foot quite a good step outward and around the sawdust spout, for the purpose of locating it on the timber between the spout and the bearing of the...