Kucera v. Merrill Lumber Co.

• Decision Date: 17 December 1895
• Citation: 65 N.W. 374,91 Wis. 637
• Parties: KUCERA v. MERRILL LUMBER CO.
• Court: Wisconsin Supreme Court

91 Wis. 637

65 N.W. 374

KUCERA

v.MERRILL LUMBER CO.

Supreme Court of Wisconsin.

Dec. 17, 1895.

Appeal from circuit court, Lincoln county; Charles V. Bardeen, Judge.

Action by Anton Kucera, an infant, by his guardian ad litem, against the Merrill Lumber Company, for personal injuries. Plaintiff had judgment, and defendant appeals. Reversed.

The plaintiff lost his right hand and a portion of his forearm by being caught in a wheel in the defendant's sawmill at Merrill, Wis., July 1, 1893, he being at the time employed as a night oiler in the mill. It appeared at the trial that the plaintiff was a boy 16 years old, June 13, 1893, and was at that time 5 feet 3 inches in height. He had been employed about sawmills for parts of four summers. In 1890 and 1891 he had worked carrying lath. In 1892 he had worked at the slashing table, and tended the refuse conveyor, and had also done some work upon the log deck. And in the latter part of October, 1892, he began working as oiler, and oiled that season about two weeks. In the season of 1893 he was re-employed as oiler, and began work about the 1st of May. The testimony tended to show that he received no instruction as to the method of performing his duties, except to go and oil. His custom was to oil the mill before it started running in the evening; and again at about 9 o'clock, when the mill shut down to change saws; again at midnight, when the mill shut down for supper; again at about 3 a. m.,--on all of which occasions the machinery was not running. His duties did not call him near the machinery or gearing when it was running, unless, on his rounds, he found hot boxes, in which case it was his duty to examine and oil such boxes between times, and while the machinery was running. It appears that boxes had heated three or four times during the time plaintiff was employed as oiler. On the night of the injury it appears that the plaintiff went around and oiled the boxes in the evening before the mill started up, and found one hot box. This box was a box 12 inches long resting on a 12-inch beam or bridge tree, the top of which was just at the height of the plaintiff's eyes from the floor. In this box revolved a horizontal 3-inch steel shaft, which ran squarely across the bridge tree and terminated in a 30-inch gear wheel upon the other side of the bridge tree, which wheel meshed into another gear wheel, which turned another shaft, at right angles with the shaft first spoken of. This was the box which was hot. There were two oil cups upon it, and there was testimony tending to show that one of the cups was defective, so that the oil would not run through it. After oiling the mill, and after the mill had started running, the plaintiff went back to this box to feel of it, and see if it was any better, and finding that it was not, he arranged a pail of water with a faucet so that water could drop upon it, and then went and told the night foreman about it, who told him to go and watch it close. Thereupon he proceeded with his lantern to examine the box again. He approached the bridge tree on the side opposite from the wheel, placed his lantern upon the floor, held onto the bridge tree with his left hand, and reached up and over with his right hand to feel of the hot box, it being necessary to stand on his toes to reach it. He testifies that he put his hand onto the box, and it was so hot he could not hold his hand on it, and all at once his arm got cut off. The fact is certain that his hand and arm were in some way drawn into the wheel on the other side of the bridge tree, the spokes of which passed within 1/4 to 1/2 of an inch of the bridge tree, and which wheel was then making about 400 revolutions a minute. The wheel was unguarded, and there was evidence tending to show that by the rapidity of its revolutions it made a suction of air downward. The negligence which was claimed and relied on by the plaintiff consisted in the failure to guard or fence the wheel, and the failure to warn the plaintiff of the danger. A special verdict was returned by the jury as follows: “(1) Ought the defendant reasonably to have known or anticipated that there was danger to a workman, of the age, understanding, and experience of the plaintiff, while exercising ordinary care in performing the duties of oiler of the machinery in question, getting his hand into the wheel, and being injured thereby? Ans. Yes. (2) If you answer question No. 1 yes, then was such danger apparent to a person of the age, experience, and understanding of the plaintiff, while engaged in the performance of the duties of oiler in defendant's mill? Ans. No. (3) Did the plaintiff comprehend, or ought he, in the exercise of ordinary care, to have comprehended and appreciated, the risks and dangers incident to the performance of his duties as oiler at the place in question? Ans. No. (4) Was the plaintiff, at the time the accident happened, using such care and attention, in performance of the work he was engaged in, as an ordinary and careful person, of the same age, understanding, and experience, would have used? Ans. Yes. (5) What amount of damages did plaintiff sustain by reason of the alleged injury? Ans. $6,375.” Judgment was entered for the plaintiff upon this verdict, and defendant appealed.Curtis & Reid and Van Dyke, Van Dyke & Carter, for appellant.

Flett & Porter, for respondent.

WINSLOW, J. (after stating the facts).

The broad claim is made that the evidence in the case shows, as matter of law, that the plaintiff knew, or ought to have known and appreciated, the risk, and hence that the motion to...