Lind v. Unif. Stave & Package Co.
| Decision Date | 03 May 1909 |
| Citation | 120 N.W. 839,140 Wis. 183 |
| Court | Wisconsin Supreme Court |
| Parties | LIND v. UNIFORM STAVE & PACKAGE CO. |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Douglas County; A. J. Vinje, Judge.
Action by Anna Lind against the Uniform Stave & Package Company. Judgment for plaintiff, and defendant appeals. Affirmed.
This action was brought to recover damages for the death of plaintiff's intestate, and resulted in a verdict and judgment for plaintiff, from which this appeal is taken.
On December 24, 1907, about 10 o'clock in the forenoon, the deceased walked into an open tank of hot water at appellant's plant, and met his death in consequence thereof. The tank was 33 feet wide and 52 feet long, and was divided into three compartments, each 10 feet by 52 feet, and the water therein was 8 feet deep. There was no roof over the tank, and it was covered with two-inch plank. In each of the compartments, and extending lengthwise thereof, there were five trapdoors, each 7 feet long and 3 feet 4 inches wide. These trapdoors were kept closed, except when the compartment, of which they furnished a partial covering, was being emptied or filled. Each compartment held a day's supply of bolts for the factory. The contents of one was being manufactured while another was being filled, and in the third bolts were being boiled preparatory to manufacture. The bolts were carried from the vat into the factory by an endless chain, which, together with a runway leading thereto, extends about 16 feet from the factory proper. As the bolts were being manufactured the same were pushed onto the endless chain; those nearest the chain being first taken. As the process of emptying the compartment continued, it was necessary to keep raising the trapdoors extending toward the rear end of the vat, so as to push the blocks onto the chain. On the morning in question the middle compartment was being emptied, and the three trapdoors therein nearest the endless chain were open, and two men were at work in pushing the bolts onto the chain. The deceased stepped into the opening farthest from the endless chain and nearest the rear end of the vat. He had been working at the plant for six months. His work consisted principally in rolling the bolts, as they were sawed, into the vats, and in taking the trimmings and short pieces of waste from the logs as they were cut into bolts, and placing them in a pile at the rear or west end of the vat. On the morning of his injury the deceased was engaged principally in removing the waste material. The compartment nearest the mill was being filled, and the bolts were being carried into this portion of the vat by force of gravity. The trapdoor into which the deceased fell had been open about an hour before the accident. It was necessary for the deceased in carrying away the refuse to pass over the middle compartment and over one of the trapdoors therein. The direct line between the point from which he took the refuse and the place where he deposited it would be about four feet from the open trapdoor. The point where he actually stepped into the vat is not definitely established, but the evidence tending to show that it was about seven feet out of the direct line of travel is reasonably satisfactory, and is not disputed. The distance the refuse was carried was 25 feet. During the hour that the trapdoor was open, deceased in carrying the refuse passed by the open space in the neighborhood of 40 times and within a very few feet of the same. He was making his return trip after having deposited a block in the rear end of the vat when he fell in. He was thoroughly familiar with the manner in which the work was conducted. He and the two men employed to push the bolts onto the endless chain were the only men employed on the top of the vat. There was evidence tending to show that at times there was considerable steam issuing from the openings, occasioned by the lifting of the trapdoors, as well as some steam escaping through the cracks. At times it appeared to be quite dense, and would then clear away for a short interval. The evidence leaves the impression that, while there was more or less steam escaping all the time, there were times when the vat was comparatively free from it; while at other times it apparently settled and beclouded the vat.
Appellant urges that the court erred (1) in refusing to grant a nonsuit; (2) in refusing to direct a verdict; (3) in instructing the jury; (4) in ruling on evidence; (5) in refusing to change the answers of the jury to two questions in the special verdict; (6) in refusing a new trial; and (7) in ordering judgment for respondent.
Lamoreux, Shea & Cate, for appellant.
G. S. Risjord, for respondent.
BARNES, J. (after stating the facts as above).
This appeal involves the following questions: (1) Was the defendant negligent? (2) Was decedent guilty of contributory negligence? (3) Was it error to permit the plaintiff to show that the openings in the top of the vat were guarded after the accident? (4) Did the court err in charging the jury that the burden of proof was upon the defendant to establish the defense of contributory negligence?
1. The only ground of negligence on the part of the plaintiff that it is claimed existed was its failure to surround the open spaces left in the top of the vat by the raising of the trapdoors therein, with suitable barriers or safeguards for the protection of its employés, as required by section 1636j, St. 1898. There can be little doubt that the open unguarded trapdoor created a situation of danger for employés working around the opening, and it was a question for the jury to determine on the evidence whether such openings could be guarded without unreasonably interfering with the work that was being carried on, and which could not be performed with the doors closed. Van de Bogart v. Marinette & Menominee Paper Co., 132 Wis. 367, 112 N. W. 443;Kreider v. Wis. River P. & P. Co., 110 Wis. 645, 657, 86 N. W. 662. In the latter case it is said that most of the cases arising under section 1636j, where there is a failure to guard, leave the question of breach of duty on the part of the employer to the jury, unless there is no room for conflicting inferences. This court cannot hold as a matter of law that there was not sufficient evidence of negligence on the part of the defendant to carry the case to the jury. The jury having found that the defendant was negligent in failing to provide guards as required by the statute referred to, the question of assumption of hazard by the deceased is not in the case, although other phases of contributory negligence might be shown and might constitute a defense. Klotz v. Power & Mining Machinery Co. (Wis.) 116 N....
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