Krueck v. Phœnix Chair Co.
| Decision Date | 04 May 1914 |
| Docket Number | No. 99.,99. |
| Citation | 147 N.W. 41,157 Wis. 266 |
| Parties | KRUECK v. PHŒNIX CHAIR CO. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Sheboygan County; Michael Kirwan, Judge.
Action by Gerhard Krueck against the Phœnix Chair Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded for new trial.
On October 10, 1912, the plaintiff was injured while in the employment of defendant operating a grooving saw. A special verdict found: (1) The unguarded groove saw which injured the plaintiff's hand was so located as to be dangerous to him in discharging the duty of his employment which he was performing when he was injured; (2) defendant's failure to guard the saw was a proximate cause of the plaintiff's injury; (3) the rubber bumper which a lever pressed down on the chair backs to hold them in place while being grooved by the saws was, at the time of the plaintiff's injury, in such a condition as to permit the lever and chair backs to become loose while the machine was in operation; (4) the condition last mentioned existed during such length of time prior to the injury that the defendant in the exercise of ordinary care and diligence should have learned of it and remedied the same; (5) failure to remedy this was a proximate cause of the plaintiff's injury; (6) there was not on the part of the plaintiff any want of ordinary care which contributed to cause the injury.
The appellant assigns error: (1) The denial of its motion to direct a verdict in its favor. This includes several minor assignments of error. (2) Also the refusal of the court to submit to the jury a question as follows: “Could the defendant's grooving saw on which the plaintiff was injured be used for the work being done at the time he was injured if guarded?” (3) A ruling was made with reference to an order of the Industrial Commission, requiring the guarding of circular saws except while specific work was being done where it was impossible to do the work when the saw was guarded. A ruling was made excluding the testimony of the witness Kaems, a deputy of the Industrial Commission, who qualified as an expert, and who testified that the saw in question had been examined by himself and other members of a committee appointed by the Industrial Commission who had come to the conclusion that the saw could not be guarded, and had made the order above referred to. (4) An instruction was given to the jury as follows:
The following instruction was requested by the defendant and refused: “You are instructed that if it was impossible to do the work of grooving chair backs on defendant's grooving saw machine, as plaintiff was doing at the time of his injury, when the saw on said machine was guarded, then the defendant was not required by law to guard said saw.” It was practically conceded that there was no sufficient evidence to sustain the third finding of the special verdict.
There was testimony tending to show that the chair back which plaintiff was engaged in grooving was clamped down upon a carriage moving in an arc over the top of the saw, which cut a groove in the underside thereof, while the carriage was being pushed away from the operator. When the carriage was pushed to the farther end of the arc a considerable portion of the saw was exposed in front of the body of the operator. The carriage was then pulled back toward him by the operator holding the lever handle with his right and the chair back with his left hand, and the chair back removed and another placed in the carriage. The chair back was held or clamped on the carriage by means of a lever hinged at the end farthest from the operator, having a handle on the near end and running parallel with the flat surface of the saw over the saw and carriage and about three inches to the right of the saw. This lever had a rubber block or pad about the middle, and there was an upright post on that part of the carriage nearest the operator having a notch or ratchet edge, and into this the lever was hooked when pressed down upon the chair back. The chair back was held in place by projecting lugs to prevent lateral movement, and by the rubber block on the lower side of the said lever pressing on the upper side of the chair back to prevent upward displacement. When by reason of lesser convexity in the chair back the rubber block would not, with the lever down to the lowest notch, reach down far enough to press and hold the chair back in position, a wedge was placed between the lower end of the rubber block and the chair back. During this operation upon a chair back fastened in the manner described, the plaintiff, after pushing the carriage away from him and thereby making the desired groove in the underside of the chair back, began to pull the carriage back toward him, when the lever escaped from the ratchet notch, and plaintiff's right hand with which he had been pulling the carriage back by the lever handle was unintentionally moved to the left a few inches, and came in contact with the upper cutting edge of the saw, causing the injury complained of.Williams & Stern, of Milwaukee, for appellant.
Simon Gillen, of Sheboygan, for respondent.
TIMLIN J. (after stating the facts as above).
[1] At the threshold of this inquiry some doubt is suggested with reference to what statutes apply to the case, although appellant contends that under either statute it was entitled to a directed verdict. It is argued that section 1636j, chapter 470, Laws of 1911, approved June 28, 1911, published June 29, 1911, was repealed by implication by chapter 485, Laws of 1911, approved and published June 30, 1911. Repeals by implication are not favored. Where there is nothing inconsistent or conflicting in the statutes in question there is no repeal by implication. Atty. Gen. v. Brown, 1 Wis. 513, marg.
[2] Section 1636j has been construed as not requiring such fencing or guarding as would prevent the practical operation of the machine. Lind v. Uniform, etc., Co., 140 Wis. 183, 120 N. W. 839;Monaghan v. Northwestern Fuel Co., 140 Wis. 457, 122 N. W. 1066;Willette v. Rhinelander Paper Co., 145 Wis. 537, 555, 130 N. W. 853;Adams v. Menasha Paper Co., 154 Wis. 577, 583, 143 N. W. 658;Montevilla v. Northern F. Co., 153 Wis. 292, 295, 141 N. W. 279. The two cases first above cited are somewhat criticised in Willette v. Rhinelander Paper Co., supra, but that opinion must be read with reference to the statute as it then existed, and with reference to the particular appliance there under consideration. In Willette v. Rhinelander Paper Co., supra, it is also said: 145 Wis. 555, 130 N. W. 859.
Premising that under the statute as it read when this injury occurred the duty to guard or protect is absolute, and that the exercise of ordinary care on the part of the employer cannot be deemed a compliance with such absolute duty, yet the statute is not to be construed to require the performance of that which is impossible. A mandate to guard, fence, or protect an appliance in use assumes the continued use of that appliance. The imposition of an absolute duty to guard is not the same as the imposition of a duty to guard absolutely. If it be said that the employer must, in order to comply with this statute, wholly discard any appliance of the class mentioned which cannot be securely guarded or fenced, or that he must forego their use altogether, that is, we think, deriving from the statute a consequence not contemplated. The statute (section 1636j) contemplates the continued use of the described appliance, but of course guarded, fenced, or protected. It, therefore, means that the appliances shall be guarded or fenced as safely and securely as is possible consistent with the continued practical use of such appliances. This does not mean that the employer may insist on some particular form or style of machine which particular form or style it is impossible to guard, when machines of a similar nature, and capable of efficiently performing the same function, may be had which it is perfectly feasible to guard; but (for illustration) the employer is not obliged to discontinue the use of circular saws because it might be impossible to place a stationary guard over the cutting edge thereof although it might be his duty, when practical, to adopt as a guard the ordinary disappearing saw. In other words the duty to guard might carry with it the duty to change the setting or frame of the saw so as to make a guard possible and practicable. In Besnys v. Zohrlant L. Co., 147 N. W. 37, decided herewith, the appliance could be guarded and still be operated. Mere difficulty or inconvenience or impracticability, falling short of preventing the practical operation of the machine, is not a sufficient excuse for failure to comply with the statutory duty. Willette v. Rhinelander Paper Co., supra.
[3] Chapter 485, Laws of 1911, sections 2394--41 to 2394--71, Stats., requires the employer to furnish to his employés...
To continue reading
Request your trial