Keena v. Am. Box Toe Co.

• Decision Date: 06 December 1910
• Citation: 128 N.W. 858,144 Wis. 231
• Parties: KEENA v. AMERICAN BOX TOE CO.
• Court: Wisconsin Supreme Court

144 Wis. 231

128 N.W. 858

KEENA

v.AMERICAN BOX TOE CO.

Supreme Court of Wisconsin.

Dec. 6, 1910.

Appeal from Circuit Court, Milwaukee County; Orren T. Williams, Judge.

Action by Martha Keena, an infant, by James B. Keena, her guardian ad litem, against the American Box Toe Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

This is an action for personal injuries. It appeared on the trial that on July 20, 1907, the plaintiff was injured while working at a machine in the defendant's shop in Milwaukee, she being at the time 14 years and 2 months old. She had been employed by the defendant corporation about 6 weeks before the accident, her principal duties being to count and pack in boxes the shoe tips made by the company, which were pieces of leather and canvas pressed together, 4 or 5 inches in length and about 3 inches in width. On the day of the accident she was called by her brother, Walter Keena, who was foreman of the shop, to assist him at a machine which consisted of two steel rollers about 8 inches in diameter, operated by power and used to straighten the shoe tips as they were passed between the rollers. The machine stands on a table and the rollers revolve toward each other in the manner of a clothes wringer, there being a small shelf about 3 inches wide on each side. The foreman stood on the side where the rollers move towards each other and fed the tips into the machine between the rollers, and the plaintiff stood upon the other side and was required to take the tips as they came out of the rollers. She had done this before and had been accustomed to pack them in boxes as she took them out, but on this occasion she was told by the foreman to pass them over the top roller when she had got about 15 or 20 of them and give them to the foreman and he would pack them. She worked about 10 minutes, part of the time giving the tips to the foreman and part of the time laying them down upon the shelf upon the foreman's side of the machine in front of the rollers. She claims that she did the latter when he was busy and could not take them. She also testifies that she was not tall enough to look over the machine. After working 10 minutes or so, as she withdrew her hand after depositing a pile of tips upon the foreman's side of the machine, her fingers were in some manner caught between the rollers and two of them badly crushed so as to necessitate amputation. The plaintiff claims that she had received no warning or instruction as to the dangers connected with this machine. The jury returned the following special verdict: “Q. 1. Was the plaintiff injured on the 20th day of July, 1907, by having the fingers of her right hand caught and crushed between the rolls of the ‘rolling machine’ of the defendant company? Ans. (By the Court by consent of counsel.) Yes. Q. 2. Did the defendant company, through its foreman, caution or warn the plaintiff not to get her fingers near or in the rolls in question? Ans. No. Q. 3. Was the ‘rolling machine’ in the condition in which it was at the time the plaintiff was injured dangerous to the employés of the defendant company when engaged in their ordinary duties about the operation of said machine? Ans. Yes. Q. 4. Did the defendant negligently fail to warn the plaintiff of any danger incident to the work in which she was engaged at the time of her injury, which was known or ought to have been known to the defendant, but which was unknown or unappreciated by the plaintiff? Ans. Yes. Q. 5. Was the defendant guilty of negligence which was the proximate cause of the plaintiff's injury? Ans. Yes. Q. 6. Ought the plaintiff, in reaching over the roller machine and placing the leather tips on the shelf on the feeding side of the machine, to have known that there was danger of getting her fingers caught between the rollers? Ans. No. Q. 7. Did any failure on the part of the plaintiff to exercise ordinary care for her own safety proximately contribute to her injury? Ans. No. Q. 8. What sum will reasonably compensate the plaintiff for her injury? Ans. $1,800.”

Doe & Ballhorn, for appellant.

Harry M. Silber (A. J. Schmitz, of counsel), for respondent.

WINSLOW, C. J. (after stating the facts as above).

The broad claim is made that the defendant was under no duty to warn the plaintiff of the dangers connected with the operation of the machine, because such dangers, if any, were so open and obvious that even a child of plaintiff's age must be presumed to have known and appreciated them. Upon this contention reliance is placed on Groth v. Thomann, 110 Wis. 488, 86 N. W. 178;Kuich v. Mil. B. Co., 139 Wis. 101, 139 N. W. 101, and similar cases. That the case is very close to the border line cannot be doubted. As to an adult under such circumstances it would be at once said by the court that the danger was obvious and that he needed no instruction. But how as to a child of 14 years? The difference in duty which may exist in the case of a child of such tender years and in the case of an adult was quite fully stated and the authorities collated in Schumacher v. Tuttle Press Co., 142 Wis. 631, 126 N. W. 46. There seems no necessity of going over the subject again. It is sufficient to say that it will often be held as matter of law that a danger is open and obvious to an adult and that he needs no caution, when it would also be held under the same circumstances, if an infant of tender years be involved, that...