Lang v. Sanger

• Decision Date: 25 February 1890
• Parties: LANG v. SANGER ET AL.
• Court: Wisconsin Supreme Court

76 Wis. 71

44 N.W. 1095

LANG

v.SANGER ET AL.

Supreme Court of Wisconsin.

Feb. 25, 1890.

Appeal from circuit court, Milwaukee county.Winkler, Flanders, Smith, Bottum & Vilas, for appellants.

Rogers & Mann and E. P. Smith, for respondent.

ORTON, J.

The plaintiff, about 24 years of age, was a sawyer of about 6 years' experience. The defendants owned and operated a planing-mill, and sash, door, and blind factory, in the city of Milwaukee. In the fall of 1885 the plaintiff was employed in said factory as a sawyer at a table in which was set a circular or rip-saw, and it was his business to push the boards or lumber aganst the saw, to be cut or ripped in proper width. On the occasion of the accident he stood in a somewhat confined gangway, at the end of the table, and was pushing a board against the saw to make a straight edge on one side of it, and his foot caught against a knot in the floor, as one of his hands came near the saw, and he pitched forward, so as to bring it in contact with the teeth of the saw, and his thumb and forefinger were cut off at about the first joint, and this action is brought to recover damages for such injury. The ground of the action is the negligence of the defendants in not repairing the floor of the gangway, which had become so worn and uneven, with knots projecting above the surface, as to be a dangerous place for the plaintiff to stand while doing such work, and in not repairing the guard over the saw, designed to protect the hands from coming in contact with it while doing such work, which had become loose, and had to be propped up too high above the saw to afford such protection. The plaintiff alleged, and introduced evidence tending to prove, that such defects had long existed, and that the defendants had neglected to repair the same, after his repeated requests that they should do so, and after their repeated promises to do so, and that he continued in such dangerous employment, relying upon said promises. The defendants introduced evidence tending to show that such defects did not exist at the time, and were not the cause of the accident, and that a short time before the accident such defects, if they ever existed, had been repaired, and that in the month of January, 1886, they suspended the operation of their works for several days for the repair of all such defects. The jury rendered a verdict in favor of the plaintiff of $5,000. The special findings are not material to the question on which the case will be decided. The questions raised on the merits of the case and the amount of the verdict, and on the charge of the court, will not be considered on this appeal, as they may not occur on the next trial, and are not deemed very material.

The question on which the judgment will have to be reversed has been so squarely and directly decided by this court that the error is accountable only as an oversight or accident. The circuit court admitted testimony on behalf of the plaintiff, against the objection of the defendants, that the defects complained of were repaired after the accident. Herman Klug, a witness produced by the defendants, was asked, on cross-examination: “How many guards did you ever see put on saws in that saw room?” This question was objected to, on the grounds of irrelevancy, incompetency, and immateriality. He answered. “What do you mean? They got guards on all saws now.” He was then asked: “Have they put on any more since the accident?” The same objection. He answered: “Yes, sir.” He was then asked, “Have they put it on all saws?” and he answered, “On all rip-saws.” The witness was then examined, under the same objection, all about the new guards and whether they were put on all the rip-saws. Henry Horning was recalled, as a witness for the plaintiff, to rebut the case made by the defendants, that all of the gangways had been repaired a short time before the accident, and was asked “whether any of the other gangways in that saw-room were repaired at or right after the accident.” The same objection was made. He replied “Yes, sir; there were;” and then said that his gangway,...