Koutsky v. Forster-Whitman Lumber Co.

• Decision Date: 02 June 1911
• Citation: 131 N.W. 1001,146 Wis. 425
• Parties: KOUTSKY v. FORSTER-WHITMAN LUMBER CO.
• Court: Wisconsin Supreme Court

146 Wis. 425

131 N.W. 1001

KOUTSKY

v.FORSTER-WHITMAN LUMBER CO.

Supreme Court of Wisconsin.

June 1, 1911.

Dissenting Opinion Filed June 2, 1911.

Appeal from Circuit Court, Wood County; Charles M. Webb, Judge.

Action by Albert Koutsky against the Forster-Whitman Lumber Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Action to recover for personal injuries charged to have resulted from an uncovered or insufficiently protected gearing in defendant's sawmill at Hiles, Wis. Plaintiff was about 25 years of age, a young man of ordinary intelligence, and on May 15, 1909, had been working in the defendant's mill some five or six weeks, for the last three weeks of which time he had worked about the slasher slide and live roller table, where his injury occurred on the last-named date. The following description of the slide and table in question was stipulated to be correct by the parties upon the trial, and is here inserted for the sake of greater accuracy: “That the live roller table ran east and west in defendant's mill, and that at the west end was the slab bumper, and on the north side of the live roller table at the west end was the slasher slide, which was 24 feet and 9 inches long east and west, and approximately 11 feet wide in a slanting position, running up from the bottom of the northerly edge of the live roller table to and beyond the slasher saws situated in the northern portion of the mill. That the live roller table was approximately 60 or 70 feet long. That between the slab bumper and the lumber bumper was about from 24 to 30 feet. That in the live roller table between the slab bumper and the lumber bumper were six live rollers operated as described in the pleadings 4 feet apart from center to center; said live rollers being approximately 10 inches in diameter. That on the south end of each live roller and attached to the axis thereof was a bevel gearing about 8 inches in diameter, which meshed or engaged with a similar gearing of the same size upon the shaft running east and west from the south end of the live roller. The power to turn the live rollers was transmitted to the shaft referred to by another shaft from below and turned the live rollers so that the tops thereof moved toward the west. The top of the live roller table was about two feet above the floor and about two feet wide. The shaft referred to was covered by two six-inch maple boards, making the top covering of the shafting a trifle over 12 inches wide; and on the south side under the south edge of the top boards was a drop board originally about 6 inches wide. These descriptions and measurements apply to the place of the accident and a considerable distance east and west. That commencing about south of the slab bumper and directly under the horizontal shaft and gearing in question is a hole in the floor about 6 inches wide and extending east under said drive shaft and gearing a distance of about 24 feet and beyond the gearing where the plaintiff was injured. That said hole in the floor led to a conveyer underneath into which waste, sawdust, bark, and short pieces of edgings were thrown, and that said hole was divided up by the joists in the floor underneath, and that, under the gearing in question where the injury occurred, the joists were about 6 inches apart. That the height of the top of the boards which covered the shafting and gearing above, from the floor, was 26 1/4 inches.”

The evidence tended to show that plaintiff's duty was to stand near the west end of the slasher slide on the live roller casings, with a pike pole, and pull the slabs and edgings from the live rollers and straighten them on the slasher slide, so they would go into the slasher saws straight, and, if the edgings got crossways on the other end of the slasher slide, to step onto the board which covered the gearing and drive shaft and walk eastward and straighten them out, also to clean up around the slasher when short pieces fell off and to clean up under the gearing. The evidence further tended to show that at the time of the accident he had been straightening edgings at the west end of the slasher slide, when a number of edgings got piled crossways 18 or 20 feet east of him, and he walked east on the boards covering the gearing about that distance and straightened the edging out with his pole. When he was facing northwest, a slab coming from the east on the live rollers cornerwise hit his heel, and he fell down into the alley just south of the line shaft and gearing, and as he fell reached out his hand and grabbed and thrust it into one of the gears, taking off three fingers. There was evidence to the effect that a piece had been broken off from the lower portion of the drop board covering the gearing at this point for some time, leaving the gearing partly exposed, and it was claimed that, on account of the absence of this piece of the drop board, it became possible for the plaintiff's hand to be thrust into the teeth of the cogs as he grabbed at the boards in his fall. He testified that he was about to step down onto the floor and clean up around the hole in the floor as the slab struck him.

The jury returned the following special verdict: “Question 1: Was plaintiff injured at the time and place alleged, and substantially by the means and in the manner testified to by him? Answer: Yes. Question 2: Did the defendant at and prior to the time when plaintiff sustained his injury negligently fail to securely guard or fence the gearing in which plaintiff was caught and injured? Answer: Yes. Question 3: If you answer the second question, ‘Yes,’ then answer this: Was such negligence the proximate cause of plaintiff's injury? Answer: Yes. Question 4: Did any want of ordinary care on the part of the plaintiff proximately contribute to produce his injuries? Answer: No. Question 5: What sum of money would fairly compensate plaintiff for the damages sustained by reason of his injuries? Answer: $3,200.00.”

Motions by defendant to change the answers to the second, third, and fourth questions, and for judgment for defendant on the verdict as changed, also for judgment notwithstanding the verdict, also for a new trial, were successively denied, and judgment entered for the plaintiff on the verdict, from which the defendant appeals.

Vinje, Barnes, and Marshall, JJ., dissenting.

Doe & Ballhorn, for appellant.

D. D. Conway (P. H. Martin, of counsel), for respondent.

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

[1] While the complaint in this action does not mention section 1636j (Stats. Wis.), it is very clear that it is based upon the alleged failure by defendant to comply with the requirements of that statute, and the case was submitted to the jury upon this basis.

The important claims of error relate to the application of this statute to the case, and the manner of the submission of the questions under it to the jury. As will be seen by reference to the statement of facts, the trial judge covered the vital issues in the case by four simple questions, asking (1) whether the plaintiff was injured in the manner he claimed, (2) whether the defendant negligently failed to securely guard or fence the gearing in which the plaintiff was caught, (3) whether such negligence, if found, was the proximate cause of the injury, and (4) whether want of ordinary care on plaintiff's part contributed to produce his injuries.

The first and most serious contention made by the appellant is, in substance, this: That section 1636j (Stats. Wis.), which requires all gearing, which is so located as to be dangerous to employés in the discharge of their duty, to be securely guarded or fenced, only applies to a case where the evidence shows that the unguarded gearing was dangerous to an employé working in the position in which the plaintiff was at the time of his injury.

Stated in another way, the contention is that the statutory duty to guard can only be invoked by an employé who at the moment of the accident is performing a duty which necessarily or ordinarily brings him into dangerous proximity to the unguarded gearing. Applying the contention to the concrete case before us, it is, in substance, that the gearing in question was plainly not dangerous to a man engaged in straightening slabs on the slasher slide, because it was under the boards on which he was standing, and hence, though the unprotected gearing might possibly be dangerous to a man cleaning up the floor under it, still, as the plaintiff was not so engaged at the time of his injury, the statute has no application to the case. Walker v. Simmons Mfg. Co., 131 Wis. 542, 111 N. W. 694, and Powalske v. Cream City B. Co., 110 Wis. 461, 86 N. W. 153, are cited as sustaining this contention.

We regard this as too narrow a view of the statute. As first enacted (chapter 549, Laws 1887), this statute required that gearing be guarded only when so located as to be dangerous to employés “when engaged in their ordinary duties.” These last words were dropped out in the revision of 1898, and the words “in the discharge of their duty” inserted. This change very satisfactorily indicates the legislative intent to broaden the scope of the statute and cover by its terms any employé who may at any time, either in the course of his ordinary duties, or in the course of occasional or exceptional duties, come within the danger zone.

[2] There was evidence in the present case to the effect that the plaintiff at times was required to step down into the alley between the live rollers and the edger table (in other words, into the place where he fell), and clean up the débris which accumulated there. In so doing he would necessarily come into very close proximity with the gearing in question, and it was certainly fairly a question for the jury whether the gearing, if unprotected at the side, was not so located as to be dangerous to him in the discharge of this occasional duty. If it was, then the command of the statute to...