Kroger v. Cumberland Fruit Package Co.

• Decision Date: 01 April 1911
• Citation: 145 Wis. 433,130 N.W. 513
• Parties: KROGER v. CUMBERLAND FRUIT PACKAGE CO.
• Court: Wisconsin Supreme Court

145 Wis. 433

130 N.W. 513

KROGER

v.CUMBERLAND FRUIT PACKAGE CO.

Supreme Court of Wisconsin.

March 14, 1911.

Concurring Opinion, April 1, 1911.

Appeal from Circuit Court, Barron County; Frank A. Ross, Judge.

Action by Thomas Kroger against the Cumberland Fruit Package Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Action to recover for a personal injury. Plaintiff stated these facts as a ground for recovery.

A few days prior to April, 1910, plaintiff entered the service of defendant as a common laborer in its factory. On that day he was put to work at a planer. His duties in the main were to stand at the front end of the planer, take short boards from a bolting saw near by and feed them into the machine. Such machine was equipped with a rapidly revolving arbor to which there were two knives suitably attached which surfaced boards as they were passed under them. The knives were about 2 1/2 feet long set on the arbor, that being located crosswise of the planer frame far enough above the same to allow the boards to be pushed under it as it was in motion and about 4 feet from the front of the table. The knives and arbor formed a shaft about 2 inches through. When it was in rapid motion the knives were not visible as extending outward from the surface of the shaft. On the opposite side and above the knife cylinder it was entirely unguarded. When the cylinder was in motion the knives were not observable by a person located as plaintiff was in the performance of his duties. The rapidly revolving instrumentality where exposed, was entirely unguarded or fenced and so located as to be dangerous to a person required to feed the machine, who was unacquainted with its mechanism and operation. Plaintiff was ignorant in that regard. No instruction was given him in respect thereto. He did not know how the planing was accomplished or that there was danger of personal injury attending the brushing away by hand of shavings from the top of the planer or in front of the revolving knives, while he supposed such brushing was proper. It was practicable to have guarded the knives so as to prevent the operator's hand coming in contact therewith. Plaintiff, after having been engaged at the work about two hours, in the exercise of ordinary care attempted with his right hand to clear away sawdust which had accumulated on top of the planer, when such hand came in contact with the knives and was so injured that it had to be amputated close to the wrist. By reason thereof he was damaged in loss of time, expenses for medical and surgical attention, pain and permanent disability in the sum of $20,000.

Defendant answered, among other things, putting in issue all plaintiff's charges of negligence, denying he was hired as a common laborer, alleging that when plaintiff sought employment he represented himself to be competent to perform any work in and about the factory which might be assigned to him, alleging that in fact, he was notified he would be required to operate machines; that he chose the particular work on the day in question, had done such work before and been doing it on such day nearly the whole of the time; that the knives were covered over the top for the protection of operators, were necessarily exposed on the back side to permit of escape of shavings and of the work being done but without presenting any danger to the feeder in the exercise of ordinary care. The injury and manner in which it was produced were admitted, but it was pleaded that plaintiff was a man of mature years, knew of the general features of the planer; that it was dangerous to place his hand in the vicinity of the knives and that he was injured by his own want of ordinary care.

The evidence was to this effect: Plaintiff was injured as alleged. He was about 50 years old and had lived in this country nearly 30 years. By occupation he had been, most of the time, a farmer. He had worked considerable about machinery and helped operate the same on some occasions although he had not had any experience in operating a planer. He had worked with threshing machines, observed the motion of cylinders and heard the noise produced by such machines. He had worked with a bolting saw and knew the manner in which rotary motion, such as was necessary with the planer, was produced. He knew that such attachments as characterized the planer produced such motion. The knives were observable by casual observation when the planer was not in operation. He had been near it on several occasions when it was so circumstanced and knew the change wrought in the material he handled by passing the same through the machine. He had observed as a board went through that shavings were taken therefrom and thrown with much force from the far side of the cylinder location. He was aware that some feature in the narrow zone which formed the space entirely obscured from view between where the end of a board disappeared as he fed the planer and came into view on the other side exerted much power in respect to it, causing much noise and trembling of the planer frame and throwing out of the shavings. While, as he fed the machine he could not observe the revolving knives he, nevertheless, took a location and assumed an attitude where he could and did put his mittened right hand over and into the place from which he observed the shavings thrown out and attempted to brush off such as accumulated on the pressure bar, extending out a little ways from the revolving cylinder and just near enough on the back side to escape it. He knew it was unsafe to put his hand into a rapidly revolving cylinder armed with teeth or anything of that nature. He knew by the noise of the planer when in motion and the effect upon a board fed in, the throwing of the shavings, the deposit of shavings on the planer behind the knives at the point where he attempted to brush them off, the similarity of the sound to that of a threshing machine cylinder and other circumstances that there was a sharp cutting mechanism within the narrow space of some two or three inches between where the boards he fed into the planer came in contact with the revolving shaft and the point of emergence on the back side that something operated on top of such boards to produce the effect which was in evidence constantly when the machine was in operation. He knew that there was a rotary motion to the shaft on which the knives were placed and that it was very rapid, something like a threshing machine cylinder. There was a set of live rolls in front of and some little distance from the knives. From the top of the cylinder over and down in front about to the point to where the boards engaged the knives there was what was called the chip breaker. That and the rolls so obscured the knives that a person standing at the front of the table could not see them, but standing a little on either side they were observable when the machine was idle and the revolving body was observable when in operation. Plaintiff worked about the planer some before he was injured. He carried boards thereto from the bolting saw, laying them conveniently for the feeder. He had been feeding the planer for about five hours before he was hurt. Before he took the work the machine and bolting saw were placed near together so the one who fed the former could take boards from the latter. Back of the knives there was a metal strip, two or three inches wide, called a pressure bar under which the boards ran as they left the knives. The bar sat down on the boards and the knives revolved just back of and came a little above it. On this bar shavings would accumulate to some extent. They could be left there or be removed by using a stick. There was some dispute as to whether there was need of attending to this feature. The evidence quite satisfactorily showed there was none. As plaintiff stood in doing his work at the front of the table some four or five feet from the knives, he operated by taking a board at a time from the bolting saw, or near by it, laying the board on the table and pushing it forward till it engaged the front rolls by which it was carried to an engagement with the knives and through under the pressure bar to an engagement with the back roll, by which after leaving the front one it was moved on till released therefrom when it was removed by the back tender. Plaintiff had observed shavings and dirt accumulate on the pressure bar. Several times he had reached over and brushed off the shavings with his mittened right hand. In doing so he put his hand over and down at a point somewhat out of his line of vision and close to the knives. No one had told him to do that. He had not seen any one do so. He had no knowledge as to whether it was necessary to do so or not. He observed that the planer did its work right along whether the shavings were brushed from the pressure bar or left to remain there. In making the movement mentioned his hand invaded the cylinder zone and was destroyed. He said he knew there was something between where the boards went in and where they came out which did the work, but did not know it was revolving knives; that he had never observed them, though he had, as he put in a board, always seen the shavings fly with force from the back side of the cylinder region where the board came out; that he did not know it was dangerous to do what he did and that no one had explained the matter to him in any way; that he saw the result and the appliance which he knew produced rotary motion but did not know what produced the shavings, particularly that it was the cylinder armed with the revolving knives.

At the close of the evidence, on motion, the court directed a verdict in defendant's favor. Judgment was rendered accordingly.

Victor Linley and Ludvig Arctander, for appellant.

Coe Bros. and Briggs, Thygeson, Loomis & Eversall, for respondent.

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

From the foregoing it will be seen the situation, in...