Klatt v. N. C. Foster Lumber Co.

• Citation: 97 Wis. 641,73 N.W. 563
• Parties: KLATT v. N. C. FOSTER LUMBER CO.
• Decision Date: 10 December 1897
• Court: United States State Supreme Court of Wisconsin

97 Wis. 641

73 N.W. 563

KLATT

v.N. C. FOSTER LUMBER CO.

Supreme Court of Wisconsin.

Dec. 10, 1897.

Appeal from circuit court, La Crosse county; O. B. Wyman, Judge.

Action brought by William Klatt, by his guardian, against the N. C. Foster Lumber Company. From a verdict and judgment for plaintiff, defendant appeals. Affirmed.

Action to recover for personal injuries alleged to have been received by plaintiff while in the employ of the defendant, through failure of duty on the part of the latter to furnish the former with a reasonably safe place in which to work. The facts relied upon by plaintiff were that plaintiff was an infant, 17 years of age, and did not know, and on account of his age and inexperience, was not able to appreciate, the dangers to which he was exposed; that such dangers were well known to defendant, but that it did not inform or instruct plaintiff in regard thereto; that plaintiff was put to work beside a constantly moving, exposed elevator chain and a carrying chain, at a point where the two met on the surface of the floor and ran over a sprocket wheel that projected just above the surface of the floor; that there were several chains running parallel with each other along the surface of the floor, to move slabs and other material; that at the point where they met the material was projected onto the elevator chains, which carried the material up to the height of an ordinary working table and to a point where needed for further operations; that plaintiff stood in a place about five feet long and three feet wide, facing a table along which material was conveyed; that his duty was, as such material reached a point in front of him, to pull it off to the left onto the elevator chains; that in doing such work it was necessary for him to stand with his feet close up to the sprocket wheel that projected above the surface of the floor; that there was no protection to prevent his feet from getting into the wheel and chain; that while he was at work the chain nearest to him broke, which prevented the material from being carried up on the elevator chain regularly, and required him to do a large amount of extra work to keep such material in place on the remaining chains; that soon after the break occurred plaintiff notified defendant, whereupon plaintiff was directed to resume his work, and promised that the broken chain would be speedily repaired; that plaintiff returned to his work, and soon after his foot slipped on the floor and was caught by the chain and hooks thereon, and severely injured, the toes and a part of the foot being torn off. The jury found: (1) That the plaintiff did not voluntarily assume the position where he was injured; (2) that plaintiff exercised the same care as other persons of ordinary care, under like circumstances; (3) that defendant did not exercise ordinary care to maintain the machinery in a reasonably safe condition; (4) the result might have been reasonably anticipated by defendant; (5) plaintiff was not of sufficient age or experience to appreciate the danger; (6) defendant knew of that fact; (7) the dangers were not such as would be apparent to a person of ordinary care, with the knowledge plaintiff had; (8) plaintiff could not, by the exercise of ordinary care, have learned of the danger; (9) plaintiff was not guilty of contributory negligence; (10) $3,000 will be required to compensate plaintiff for his injuries; (11) the injuries were not the result of mere accident. There was a motion for a nonsuit, overruled and excepted to, some exceptions to refusals to instruct the jury as requested, and exceptions to the instructions that were given by the court. A motion to set aside the verdict and grant a new trial was overruled and excepted to. Judgment was entered in plaintiff's favor on the special verdict, and defendant appealed.Losey & Woodward, for appellant.

Doolittle & Shoemaker, for respondent.

MARSHALL, J. (after stating the facts).

Error is assigned on the refusal of the trial court to grant defendant's motion for a nonsuit and also its motion to direct a verdict. On a former appeal in this case a judgment in plaintiff's favor was reversed and the cause remanded for a new trial. 66 N. W. 791. The evidence was the same, substantially, then as now. The question of whether the evidence on such former appeal showed conclusively contributory negligence of plaintiff, was raised, but not discussed in the opinion, though it is considered that the decision was, in effect, that the evidence was sufficient to carry the case to the jury on all the issuable facts as to plaintiff's cause of action. It follows that, the evidence being the same on this appeal, the question of whether there was sufficient evidence to warrant submission of the case to the jury, must be considered foreclosed by the former decision, and that the ruling on the motion for a nonsuit and the motion for the direction of a verdict as well, cannot be disturbed.

Error is assigned on the refusal of the court to instruct the jury as follows: “You cannot find that the defendant was negligent merely because of its failure to provide a partition, guard, contrivance or appliance between the sprocket wheel and chain, on which plaintiff was injured, and the place where he worked,” and because the court instructed the jury to the effect that there was a conflict in the testimony in respect to whether there was a cleat at the side of the chain and sprocket wheel at the time of the accident, and that the jury should consider all the evidence as to the construction and situation of the machinery and premises, and determine from all the evidence whether defendant exercised the same degree of care as was usually exercised under similar circumstances in respect to the safety of the machinery where plaintiff was at work. We are unable to say that error was committed by...