Kreider v. Wis. River Paper & Pulp Co.

• Decision Date: 20 June 1901
• Citation: 86 N.W. 662,110 Wis. 645
• Court: Wisconsin Supreme Court
• Parties: KREIDER v. WISCONSIN RIVER PAPER & PULP CO.

110 Wis. 645

86 N.W. 662

KREIDER

v.WISCONSIN RIVER PAPER & PULP CO.

Supreme Court of Wisconsin.

June 20, 1901.

Appeal from circuit court, Winnebago county; George W. Burnell, Judge.

Action by Moses Kreider against the Wisconsin River Paper & Pulp Company. From a judgment entered on granting a motion for nonsuit, plaintiff appeals. Affirmed.

Winslow, J., dissenting.Brown & Pradt (Barber & Beglinger, of counsel), for appellant.

C. H. Van Alstine, for respondent.

CASSODAY, C. J.

This is an action to recover damages for personal injuries sustained by the plaintiff while in the employ of the defendant, July 15, 1896, and at work upon a paper winder, being a machine which wound the finished paper as fast as it was manufactured upon spools or bobbins, and consisted of two upright standards or supports about 40 inches in height, securely fastened to the floor opposite each other, and about 10 feet apart. He states that upon the upper end of each such standards there was a shaft box, or socket, about 2 1/2 inches wide and 4 inches long, each box being in two pieces, with semicylindrical grooves, and a shaft about 2 1/4 inches in diameter running from one standard to the other, about 40 inches from the floor, the ends of which rested in the lower halves of the boxes or sockets, and the upper halves of such boxes rested on the lower halves and the journals of the shaft, the upper halves being hinged at one end to the lower halves, and held in place at the other end by dogs, or catch buttons; that, after loosening the dogs or catch buttons, the upper halves could be raised, so as to allow the shaft to be lifted out of the lower halves of the boxes; that each end of the shaft projected outward some from the standards, and had various collars at the end of the shaft to keep it from lateral motion; that the collar at the end of the shaft on the right-hand of the attendant (the plaintiff at the time of the injury) was about three-fourths of an inch thick, and close up to the boxes, and movable, and held in place and kept tight by means of a set screw with a square head,--being a small steel bolt with threads upon it passing through the collar and against the shaft,--and projected ninesixteenths of an inch above the surface of the collar; that the set screw was a few inches distant from the standards, and was used to release or loosen the collar from the shaft by turning it with a wrench; that the shaft when winding paper, had on it a spool of wood or iron, on which the paper was wound, and revolved at various rates of speed,--from 106 to 475 revolutions per minute,--the speed being decreased as the spool filled; that the end of the shaft at the attendant's right hand extended about one foot beyond the box; that the shaft was operated by means of belts and pulleys connecting it with the other machinery of the mill. The negligence alleged is to the effect that the shaft was not properly and securely fastened and held in place at the bearing points, so as to revolve smoothly and evenly at all times, but would run irregularly and unevenly, and at times shake and jump; that the shaft gearing and set screw were uncovered, and not safeguarded or fenced in, and the set screw was not countersunk; that the plaintiff was ignorant of the presence of the set screw and its projection, and the dangerous character of the shaft and its bearings, and the defendant negligently failed to inform him of such dangerous machine, but ordered and directed him to work and attend the paper on the spool of such revolving shaft; that while so working, and while the shaft was in motion, the plaintiff's clothing was caught by the shaft and set screw, and he was thrown with great force and violence around the end of the shaft and against the floor and the standard, and badly injured. The defendant answered by way of admissions, denials, and counter allegations, and, among other things, to the effect that the shaft and set screw were so located and used as to make it impracticable to guard or fence the same. Upon the trial, and at the close of the testimony on the part of the plaintiff, the court granted a nonsuit, and from the judgment entered thereon the plaintiff brings this appeal.

It is undisputed that the manner of using the winder was to the effect that four men were employed on the machine of which the winder was a part, the machine tender and three others; that one of the men arranged the paper so that it would properly wind around the spool; that the shaft was then set in motion, and was kept in motion until the spool was full; that, when the spool was full, the winder was stopped, and the upper halves of the boxes were raised, and thrown back, and the shaft lifted out, and rolled on the paper roll down a plank to the floor; that the set screw was loosened before or after the shaft was lifted out of the boxes, and the collar was removed, so that the shaft might be pulled out of the spool; that the shaft was then pulled out of the spool, and another spool was placed thereon, and it was put into the boxes again, and the collar and set screw were adjusted, and the paper winder was again ready for its work; that it took a little less than one hour to fill a spool.

1. We perceive no error in excluding testimony tending to prove that some time after the injury the defendant caused the set screw to be countersunk. This court has repeatedly held that evidence tending to prove that defects in machinery or a highway have been repaired after an injury is inadmissible in an action to recover damages for such injury. Lang v. Sanger, 76 Wis. 71, 75, 44 N. W. 1095;Anderson v. Railway Co., 87 Wis. 195, 202, 58 N. W. 79, 23 L. R. A. 203;Phillips v. Town of Willow, 70 Wis. 6, 34 N. W. 731;Richards v. City of Oshkosh, 81 Wis. 226, 51 N. W. 256;Barrett v. Village of Hammond, 87 Wis. 654, 58 N. W. 1053. The first, third, fourth, and fifth errors assigned come within the principles stated, and, for the reasons given, are overruled.

2. Error is assigned because the court sustained an objection to a question put to William T. Whiting--a witness on the part of the plaintiff, and the defendant's local manager of the mill in question--as to whether he had ever heard, prior to the injury, “of any one else being hurt on this set screw.” This court has repeatedly held that evidence tending to prove the fact of such prior injury was inadmissible. Phillips v. Town of Willow, supra; Richards v. City of Oshkosh, supra; Barrett v. Village of Hammond, supra. Certainly, it was more objectionable to prove that he had heard some one say that some one else had been hurt on the set screw. Of course, the plaintiff was at liberty to prove, if he could, by legitimate evidence, that the set screw was dangerous; and that the defendant had notice of it prior to the injury in question. For these reasons, the eighth error assigned must be overruled.

3. After the same witness had testified that he did not claim to be a practical machine man, and was not a practical machine man, he was asked by the plaintiff's counsel these questions: “Did you ever see countersunk set screws? * * * What was the object of countersinking?” The objections to such questions were sustained, and we perceive no error in such rulings. It is admitted in the answer that the set screw in question “was not countersunk.” The plaintiff's witness Barnes, “a practical machinist,” was allowed to testify that “the countersinking of a set screw is one that is let into the collar so that the outer circumference of it is smooth, nothing projecting over it, so that the set screw does not project over the collar”; that “it is done with a drill with a center in it,” and costs 75 cents; and that the object of it was to prevent anything coming in contact with it from being caught. Such evidence is undisputed. There is no evidence in this case that other employers of ordinary care and caution, engaged in similar business, were in the habit of countersinking such set screws. The defendant is not to be held guilty of negligence merely because it did not adopt the best or most approved way. It was sufficient for the defendant to adopt the ordinary way and machinery in use by other employers in similar business in the exercise of ordinary care and prudence. Innes v. City of Milwaukee, 96 Wis. 170, 174, 70 N. W. 1064, and cases there cited.

4. Most of the errors thus assigned arose upon the testimony taken on the examination by the plaintiff of William T. Whiting, at Stevens Point, nearly two years before the trial, as an adverse witness, under section 4096, Rev. St. 1898, amended chapter 29, Laws 1899. That section provides that “the examination of the president, secretary or other principal officer or general managing agent” of a private corporation, when a party to an action, might “be taken by deposition at the instance of the adverse party in any action or proceeding, at any time after the commencement thereof and before judgment.” To the reading of the deposition taken upon such examination the defendant objected on the ground that the witness, Mr. Whiting, was then in court, and that there was nothing to show that he was one of the persons mentioned in the statutes authorizing the examination of parties as an adverse witness. The objection was overruled, and the defendant excepted. The witness William T. Whiting in such deposition testified to the effect that he was not an officer nor stockholder of the defendant corporation; that he was the general manager of the company,--that is to say, he was the local manager of the mill, and had the local management at that place, but had nothing to do beyond that; that the officers of the company were George A. Whiting, president, R. C. Russell, vice president, C. A. Babcock, secretary and treasurer; that Babcock and Whiting lived at Neenah, and Russell at Oshkosh. After completing the reading to the jury of the deposition of William T. Whiting so taken, the plaintiff called...