Jensen v. Hudson Sawmill Co.

• Citation: 98 Wis. 73,73 N.W. 434
• Parties: JENSEN v. HUDSON SAWMILL CO.
• Decision Date: 10 December 1897
• Court: Wisconsin Supreme Court

98 Wis. 73

73 N.W. 434

JENSEN

v.HUDSON SAWMILL CO.

Supreme Court of Wisconsin.

Dec. 10, 1897.

Appeal from circuit court, St. Croix county; W. F. Bailey, Judge.

Action by Andrew Jensen against the Hudson Sawmill Company for injuries received in defendant's sawmill. From an order sustaining a demurrer to the complaint, plaintiff appeals. Reversed.

This is an appeal from an order of the circuit court sustaining a demurrer to the plaintiff's amended complaint, on the ground that the same did not state facts sufficient to constitute a cause of action. The complaint alleged, in substance, that the defendant was the owner and engaged in operating a sawmill, and that situated about in the center of the mill, and a part of its machinery, was, at the time of the happening of the injuries complained of, a certain machine, called a “conveyor,” used for the purpose of carrying and conveying edgings, sawdust, chips, and refuse material from the mill to the engine room, where the same were burned as fuel. The conveyor was about 60 feet long, and at the easterly end raised about the height of 9 feet above the floor of the mill, and the westerly end to about the height of 18 feet above the floor; that it was in the form of a huge trough, about 12 inches deep and 14 inches wide, and running in said trough and over sprockets. At each end was an endless chain, constructed of three-quarter inch iron, each of the links of which was flattened on the top, so that it ran along and scraped over the bottom of the trough when the said chain and conveyor were in motion, and the part of the chain running over the top of the sprockets projected the height of 3 inches over the rim and top of the trough; that the motive power of the mill was steam, and all of the machinery, and particularly the conveyor and chain, revolved and moved with great rapidity, the sprocket wheel making 40 revolutions per minute; that on the northerly side of said conveyor, and about 3 feet east of the westerly end thereof, was a spout or slide leading from the edger in the mill to and over said chain and conveyor, carrying the edgings and refuse from said edger over, into, and upon the conveyor and chain; that on the southerly and lower end of said spout, leading from said edger, were five iron bars, which extended in a northerly and southerly direction from and parallel with said last-mentioned spout, which extended over said conveyor, preventing the larger pieces of said refuse from dropping into and upon the said conveyor and chain, and clogging and obstructing the same; that on the southerly side of said conveyor, immediately adjacent to and touching the west end thereof, was a certain post, about 12 inches square, for the purpose of supporting the second floor of the mill, and, at the place where the said conveyor was located, it was at all times so dark that it was almost impossible to see the chain and sprockets of the conveyor, and the darkness increased the dangers of the plaintiff's employment, to the knowledge of the defendant; that it was the duty of the defendant to provide good, safe machinery and apparatus, and a reasonably safe place in which the plaintiff was to perform said work, and to have and to keep such chain and sprockets, and particularly the lower and westerly end of said chain, and the westerly or lower one of said sprockets, covered and protected, so that the same would not be dangerous to the employés and others in the vicinity thereof; that it was so made the duty of the defendant by the laws of the state, but that it had, for a long time prior to the happening of the injury complained of, unlawfully, recklessly, and negligently left and permitted the same to be uncovered and unprotected, without any means or devices whatever to prevent its employés and others in the vicinity thereof getting caught in the same, and drawn therein, and thereby injured, and that said machinery and conveyor were, at the time of the plaintiff's injury, dangerous in the extreme, by reason of the facts herein alleged; that in the spring of 1891 the plaintiff was in the employ of the defendant, as a common laborer in the yard of its mill, on what is known as the “dump”; that afterwards, and on May 20, 1893, he was required by the defendant to work and be in the mill, in, around, and between the machinery therein, and to keep the floor of the mill clean and free from sawdust and refuse, and was ordered by the said defendant to work around the said conveyor, and to carry edgings, bark, and other refuse thereto, and to the lower end thereof, and put the same upon and in the said conveyor, so that it might and would be carried out of said mill; that afterwards, about May 22, 1893, while working as thus directed, the plaintiff became apprehensive that he was liable to or might be injured because the said conveyor was uncovered and unprotected over and around the said chain and sprocket, and because of the almost total darkness therein, and from the fact that no guard or protection existed to prevent his being caught and injured, and, although the plaintiff at that time did not know and apprehend the precise danger and risk incident to such employment, still he thereupon, a few days prior to the happening of his injuries, told the defendant that he considered such place dangerous, and he would then and there quit unless the defendant would properly cover and protect said chain, sprocket, and conveyor, and more particularly the westerly end thereof, and furnish better light, so that the plaintiff could see the machinery of the said mill, and could work around and between the machinery thereof, and especially around the conveyor herein described, without danger of injury; that the defendant thereupon promised to have the same covered, guarded, and protected, so as to prevent the plaintiff being caught and injured thereby, and to provide better light therein, and directed the plaintiff to continue at work in and around said conveyor and machinery; that, relying upon said promise, the plaintiff continued in such employment; that the defendant, not regarding its duty, conducted itself so negligently that it failed to provide a good, safe place in which the plaintiff was to perform his work, in not having the mill properly lighted, and particularly in not providing sufficient light so that the plaintiff could see the chain and sprockets of said conveyor, and in not covering, fencing, and protecting the said chain and sprockets as aforesaid; that by reason of such negligence in the premises, and while said defective machine was in use and operation, and while the plaintiff was engaged as directed and in the strict line of his duty, and under the direction of the said defendant, without fault or negligence on his part, and wholly by reason of the said negligence of the defendant, on the 24th of May, 1893, and while his attention was momentarily attracted elsewhere, his clothes were caught by the said projecting, unguarded chain of said conveyor, and he was drawn...