Howard v. Beldenville Lumber Co.

• Decision Date: 21 June 1906
• Citation: 129 Wis. 98,108 N.W. 48
• Parties: HOWARD v. BELDENVILLE LUMBER CO.
• Court: Wisconsin Supreme Court

129 Wis. 98

108 N.W. 48

HOWARD

v.BELDENVILLE LUMBER CO.

Supreme Court of Wisconsin.

June 21, 1906.

Appeal from Circuit Court, Rusk County; John K. Parish, Judge.

Action by Hubert S. Howard against the Beldenville Lumber Company.From a judgment for plaintiff, defendant appeals.Reversed and remanded.

Appeal from the circuit court for Rusk county.Action for personal injuries.

The claim in the complaint was this: September 2, 1904, plaintiff was an employé of defendant in the latter's sawmill at Bruce, Wis.The machinery on the main floor of such mill consisted in part of a slab saw which was attended by one person when the mill was operating.Beneath such saw and extending down to within about two feet of the ground floor there was a box construction for directing the saw-dust from such saw to a conveyor running horizontally, nearly, with such floor and about a foot above the same.Passing through the box several feet above such floor there was a shaft, equipped with a pulley, the upper part of which was some feet from the main floor and the lower part some four feet from the ground floor.This pulley was the driver for the slab saw, power being transmitted thereto by a belt.To examine the pulley and belt, as was necessary from time to time, one was required to remove a piece of the box which was fitted for that purpose.In the main floor over where one would necessarily stand in removing the door, so-called, of the box so as to expose to view the pulley and belt there was a hole of sufficient size to permit of pieces of wood dropping through and striking whoever might be in their course.The hole was caused by wear.The work on such floor and the location of the person having charge of the slab saw were such that pieces of wood were quite likely to be pushed over the brink of the hole.This condition of things was well known to the defendant prior to the occurrence hereafter mentioned.The plaintiff had no knowledge thereof before such occurrence.On said 2d day of September, 1904, at about 4 o'clock in the morning while plaintiff, with due care, was performing his duty to examine the pulley and belt, the door of the box having been removed for that purpose, and he was standing with his right hand resting against the box, with his body somewhat bent over to the left, in the act of looking up into the box, he was struck on the right arm by a piece of wood which came through the hole aforesaid, loosening his hand from the box and causing him to fall forward, and to make an involuntary movement of such hand to catch himself, whereby such hand or the arm was caught between the belt and pulley and carried down and around the latter, breaking his shoulder and arm, causing him much pain and permanently disabling him.He was 31 years of age when the injury was occasioned.He was in good health and capable of earning $2.50 a day.He has been damaged as a result of his injuries in the sum of $25,000, besides necessary expenses for surgical and medical attendance of $100.

All allegations as to negligence on the part of the defendant were put in issue by the answer.Also all allegations as to the manner in which plaintiff received his injury and as to the amount of his damages.

During the impaneling of the jury plaintiff's attorney claimed the right to interrogate each juror as to whether he was connected in any way with any accident or casualty company, saying that he understood defendant's attorney represented such a company in the action.Exception to such remark was taken by defendant's attorney, he at the same time asserting that he knew of no accident or casualty company being interested in the case and that he represented the defendant only.Plaintiff's attorney persisted and requested to have defendant's attorney sworn and examined on the subject.The request was refused but the court interrogated each juror at length as to whether he was connected with any such insurance company either as stockholder or policyholder or as an insurer of his employés or in any other manner.Plaintiff objected to the examination and duly saved exceptions in respect thereto.After the close of the evidence the court, counsel on both sides and a Mr. Prince, who was present, apparently associated with the attorney for defendant in some capacity other than that of an attorney, withdrew from the presence of the jury and the judge then, against the protest of defendant's counsel, required said Prince to submit to an examination under oath as to whether he represented any accident or casualty company interested in the cause.He testified that he was the adjuster for the Ocean Accident & Guaranty Corporation, and that he supposed the defendant company was paying the expenses of the litigation, but that he had no personal knowledge of the matter or as to whether the insurance company had a policy covering the accident in question; that his company sometimes attended to litigation of that sort where it was not directly interested because of having a policy covering the case.

The proof offered to support the plaintiff's claim was in substance this: There was a slab saw on the main mill floor, the saw-dust from which was disposed of by passing down through a box underneath the saw to a conveyor near the ground floor.Through this box there was a shaft on which there was a pulley connected with the slab saw as alleged in the complaint.The business of plaintiff was to look after the machinery on the ground floor during the night shift.That required him, from time to time, to examine the condition of such pulley and belt.In doing so he was required to approach the box, step up on an 8-inch timber lying horizontally on the floor between two bridge-tree timbers standing upright thereon some two or three feet apart and remove the door of the saw-dust box, which door was about three feet long.That being done, and the operative standing upright between the bridge trees and the mill being in operation, the situation was like this.The pulley was 24 inches in diameter.Its motion was outward from the upper side.The speed was about six hundred revolutions per minute.The belt was about eight inches wide.The top of the operative's head was about one foot above the top of the pulley.The outer rim of the pulley reached to within about fifteen inches of his body and to within about five inches of the outside of the box and it filled the box from right to left except about three inches on each side.Some two weeks before the accident a new belt was put on because the old one did not run true.The new one was accustomed to run from side to side, somewhat, and to keep it in place a piece of wood was nailed in the box about seven feet from the bottom thereof on the right hand side.A few moments before the accident plaintiff finished repairing a belt by which power was transmitted to some machinery on the main floor.Having done so and cleaned up the dirt occasioned thereby he proceeded to look after the belt in the box.He stepped upon the 8-inch timber aforesaid and removed the outside of the box, setting it aside.He then placed his hand on the box at the top of the opening, somewhat to the right, and leaned to the left, turning his head upward sufficiently to enable him to look up into the box where the guide aforesaid was located.While he was in the act of so looking a piece of wood about eight inches long and two inches square came from above striking his arm and glancing off to and striking his face.Instantly thereupon his hand was released from the box and he fell forward, the motion of his arm being such that it or the hand was caught between the pulley and the belt and whirled around the former till it was released.As his hand and arm were so carried partly around the pulley his body with great force was jerked forward against the outside of the box, his face striking the left hand edge thereof, and his arm was twisted and broken and so strained as to permanently destroy its usefulness.On occasions prior to the injury when he had opened the box and examined the belt and pulley he had not observed any hole in the floor above.There was such a hole, the same being where the person who tended the slab saw was required to stand.It was about ten inches square.When the stick of wood fell to the floor he looked at it and so was able to tell about its size.He also looked up to see where it came from and observed the hole.He could not say just how his hand or arm was caught or released, but thought the hand came down on top of the pulley and went around to the place where it was released by the belt leaving the pulley.The hand was injured somewhat.It went in and out very quickly.He said: “I should judge that it (the hand) passed down and away from me up to where the belt left the pulley on the farther side.I don't know for certain whether my hand went clear around or not, or whether it slipped out before it got clear around.I know there was a mark on the back of my hand where it was skinned.”As corroboration the person who operated the slab saw testified to there being a hole in the floor through which a piece of wood might have fallen and struck the plaintiff.He said the hole was caused by a wearing out of the floor; that it had been there some time; that he had to exercise care to avoid stepping into it; that several times he had called attention thereto in order to have it fixed and that he was accustomed to cover it with loose lumber or slabs.Plaintiff testified that he walked around some, outside of the mill after he was injured; that after a while he met one of the employés who took him into the engine room where he soon became unconscious and in that condition was taken home.He did not say to anyone before being taken from the mill or thereafter, except as hereafter indicated, that he was injured while examining the belt in the box, until he made such claim in the action.He testified that he never told...