Karras v. Chi. & N. W. Ry. Co.

• Decision Date: 15 May 1917
• Docket Number: No. 112.,112.
• Citation: 162 N.W. 923,165 Wis. 578
• Court: Wisconsin Supreme Court
• Parties: KARRAS v. CHICAGO & N. W. RY. CO.

165 Wis. 578

162 N.W. 923

KARRAS

v.CHICAGO & N. W. RY. CO.

No. 112.

Supreme Court of Wisconsin.

May 15, 1917.

Appeal from Circuit Court, Iron County; G. N. Risjord, Judge.

Action by Christ Karras against the Chicago & Northwestern Railway Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Action for personal injury. In February, 1913, plaintiff, then about 50 years of age, came to this country from Greece. Since his arrival and up to the time of his injury on June 12, 1915, his principal employment was that of a section repair man on railroads. On June 12th, for the purpose of peeling hemlock ties, he was given a hatchet or small broad axe beveled on one side, with a handle about 14 inches long measured from the head. The hatchet was dull and somewhat nicked. A couple of hours after he began work, he said, “I started to peel one hemlock tie, and I find one knot or bark there, and I strike it hard many times, and the bark came out or the knot, and strike me on the right eye,” from which blow to the eye the injury complained of resulted. Plaintiff came from a farm in Greece, where there was no wood, and had had very little experience in the use of an axe or hatchet. The case was tried to a jury, and it found: (1) That the hatchet was not a reasonably safe appliance for the purpose for which it was used; (2) that the failure to furnish a reasonably sale appliance was the proximate cause of the injury; and (3) damages in the sum of $750. The court entered judgment for defendant notwithstanding the verdict upon the ground that plaintiff at the time of his injury was engaged in interstate commerce and assumed the risk. The plaintiff appealed.

Kerwin, Siebecker, and Eschweiler, JJ., dissenting.William E. Fisher, of Stevens' Point (James A. O'Neill, of Ironwood, Mich., of counsel), for appellant.

R. N. Van Doren, of Milwaukee, for respondent.

VINJE, J. (after stating the facts as above).

[1][2] Was the trial court right in holding that plaintiff was engaged in interstate commerce? There is no question but that the defendant was so engaged, and that any actual repair work to its track at the time and place of injury would be interstate commerce work. Pedersen v. Delaware, L. & W. R. R. Co., 229 U. S. 146, 33 Sup. Ct. 648, 57 L. Ed. 1125, Ann. Cas. 1914C, 153. The nature of the work being done at the time of the injury determines whether or not it is an interstate commerce employment. Ruck v. Chicago, M. & St. P. R. Co., 153 Wis. 158, 140 N. W. 1074;Illinois C. R. Co. v. Behrens, 233 U. S. 473, 34 Sup. Ct. 646, 58 L. Ed. 1051, Ann. Cas. 1914C, 163. It appears that the ties plaintiff was peeling had been purchased by defendant at Watersmeet, Mich., and shipped to this track section. They were dumped in piles of from 30 to 50 and more to be peeled and subsequently used where needed in the repair of the track. They were so used during the summer and up to some time in September. Ties with the bark on were not put into the track. Hence in order to be fully prepared for track repair they must be peeled. The peeling, therefore, was a part of the process of manufacture of the ties for the purpose intended. This process, in the case at bar, was carried on independent of, and separate from, a then immediate use of the ties in track repair. It was a preparation of them for future use. That it was done by the defendant upon its right of way, instead of by others elsewhere, or that the ties were destined for interstate commerce, cannot constitute the process of their manufacture interstate commerce work. To constitute that there must be an actual entering upon or engagement in such work. A mere manufacture or preparation of material which is destined at some time in the future at some place to be used in interstate commerce work is not enough. Sullivan v. Chicago, M. & St. P. R. Co., 163 Wis. 583, and cases cited on page 587, 158 N. W. 321;Minneapolis & St. Louis Ry. Co. v. Winters, 242 U. S. 353, 37 Sup. Ct. 170, 61 L. Ed. 358. It follows that plaintiff was not engaged in interstate commerce work at the time of his injury.

[3] Were the jury warranted in finding that defendant was negligent in furnishing a dull and nicked hatchet with a short handle? It is urged, and there is evidence to support the claim, that a dull and nicked hatchet tends more than a sharp one to throw the chips towards the one using it, and that the head and eyes must be held nearer the work when using a short-handled hatchet than a long-handled axe. This may be conceded. But it does not follow from such concession that a dulled and short-handled hatchet for the purpose for which this was used is not a simple tool within the meaning of the rule announced in Stork v. Charles Stolper Cooperage Co., 127 Wis. 318, 106 N. W. 841, 7 Ann. Cas. 339,Meyer v. Ladewig, 130 Wis. 566, 110 N. W. 419, 13 L. R. A. (N. S.) 684,Lehman v. Chicago, St. P., M. & O. R. Co, 140 Wis. 497, 122 N. W. 1059, and in Kolasinski v. Chicago, M. & St. P. R. Co., 164 Wis. 50, 159 N. W. 563. We deem it a simple tool. A man of mature years in the full possession of his senses must be held to comprehend the ordinary and usual results that follow the use of a dulled, short-handled hatchet in the operation of peeling ties. Adult, sane human beings, though not of a high order of intelligence, or of great experience, must be accorded some field within which they may be said to fairly comprehend the ordinary and usual results of the work in which they are engaged. If the use of the hatchet in question does not come within that field it is difficult to conceive what does. Plaintiff had used the hatchet two hours before he was hurt, and the length of the handle and its dulled condition must have become apparent to him before his injury occurred. True, one may argue that many results may follow this or that condition of a tool, and that the results are not easily ascertainable or understood by men lacking in experience; and one may add by those of the ripest experience when it comes to forecasting all the results that may follow from a given condition. The field of argument is limitless; but one can hardly solve such questions satisfactorily by reasoning. They lie rather within the field of perception; within that field wherein the average experience of mankind furnishes the best standard. Tested by such experience we think the hatchet and the use thereof constituted one of those simple tools and operations whose probable results must be held to be practically as familiar to one mature man as to another. For that reason no duty devolved upon the defendant to inspect the hatchet or instruct plaintiff in the use thereof. Gibson v. Milwaukee L., H. & T. Co., 144 Wis. 140, 143, 128 N. W. 877.

The conclusions reached show that the trial court erred in holding that plaintiff was engaged in interstate commerce, and also in not setting aside the answer of...