Maitland v. Gilbert Paper Co.

• Decision Date: 16 November 1897
• Citation: 72 N.W. 1124,97 Wis. 476
• Parties: MAITLAND v. GILBERT PAPER CO.
• Court: Wisconsin Supreme Court

97 Wis. 476

72 N.W. 1124

MAITLAND

v.GILBERT PAPER CO.

Supreme Court of Wisconsin.

Nov. 16, 1897.

Appeal from circuit court, Winnebago county; George W. Burnell, Judge.

Action by Harry I. Maitland against the Gilbert Paper Company. From a judgment for plaintiff, defendant appeals. Reversed.

This was an action to recover compensation for an injury alleged to have been caused to plaintiff by actionable negligence of the defendant. The facts alleged, as to which there was no dispute, are, that at the time of the plaintiff's injury he was, and for a long time prior thereto had been, in the employ of defendant as an engineer; that his duties were, in part, to attend to the boilers used to generate steam to operate a stationary engine; that under his supervision were firemen, whose duties were to attend to the fires under the boilers, see that the steam pressure was kept at the proper point, and that the water in the boilers was kept at the proper level, and to do such other work as plaintiff might require; that there was attached to the boilers a water column to which was connected a water glass, so arranged as to render visible the height of the water in the boilers; that while plaintiff was standing in front of the water glass, a few moments after having put a new one in place, and while watching to see that it was properly adjusted, it suddenly burst, causing glass, steam and hot water to strike plaintiff in his left eye and injure it to such an extent as to destroy it. The negligence charged was that defendant negligently furnished a defective and insufficient water glass, and knowingly caused the same to be used. This charge, at the close of the evidence, was withdrawn. The further negligence charged was that the fireman, Frank Welk, was incompetent; that defendant was notified of such incompetence; that plaintiff remained in the employ of defendant on its promise to remove such incompetent fireman and employ a competent person in his place; that after such promise plaintiff remained in the defendant's employ on the faith of such promise, up to the time of the injury; and that the injury was caused by the fireman carelessly suddenly opening and shutting a surface blow-off valve, whereby the pressure in the boilers was suddenly increased. At the close of the evidence a motion was made to direct a verdict for the defendant, which was denied. A special verdict was demanded by defendant, and the following questions, among others, proposed:

“Did the fireman Welk open the surface blow-off valve as claimed by the plaintiff?

If you answer the last question ‘Yes,’ was the opening of such valve by the fireman Welk the proximate cause of plaintiff's injury?

If the fireman Welk opened the valve as claimed by plaintiff was he at the time acting in the line of his employment?

Did the plaintiff have authority to discharge the fireman under him?”

All of such questions were refused, except such as are included in the special verdict, which was rendered as follows:

“First: Was the defendant guilty of negligence that caused the injury of the plaintiff?

Answer: Yes.

Second: Was the fireman Welk an incompetent person to discharge the duties of fireman?

Answer: Yes.

Third: Did the plaintiff inform Mr. Paul, the superintendent of the defendant, about ten days before the accident, that Welk was an incompetent person to discharge the duties of fireman?

Answer: Yes.

Fourth: If you answer the last question ‘Yes,’ did the plaintiff continue in the employment of the defendant an unreasonable time after such notification and thereby assume the risk of such incompetency?

Answer: No.

Fifth: Did Welk suddenly open the surface blow-off valve at the time the plaintiff was examining the water-gauge glass and was injured?

Answer: Yes.

Sixth: If you answer the last question ‘Yes,’ did the sudden opening of the surface blow-off valve cause the bursting of the glass?

Answer: Yes.

Seventh: Was the plaintiff guilty of negligence that contributed proximately to the injury?

Answer: No.

Eighth: Did the plaintiff have authority to hire and discharge firemen of his own motion?

Answer: No.

Ninth: If the court should be of the opinion that the plaintiff is entitled to recover, at what sum do you assess his damages?

Answer: $1,250.”

The evidence as to the first and eighth questions, on the part of the plaintiff, was to the effect that he told Mr. Paul, the superintendent of the company, some time prior to the injury, that the fireman Welk was incompetent, and that he did not want to remain at his post with such an incompetent person, and that he remained upon Mr. Paul's promise to furnish a competent person in Welk's place; that he did not have any authority to hire or discharge firemen, and that he did not hire Welk. He said, however, that the way Welk came to go to work was that they were short of help; that the other fireman told him he knew of a person that wanted a job, whereupon Welk was brought in and plaintiff set him to work, and that he worked thereafter up to the time of the injury. Mr. Paul testified that plaintiff did not notify him that Welk was incompetent; that plaintiff had the entire charge of his firemen, with authority to hire and discharge them. Mr. Gilbert, the manager of the defendant's business, testified that he gave plaintiff full authority to hire and discharge his firemen. Joseph Gedelski testified that he worked as a fireman with Welk at the time plaintiff was injured; that he had been out of the employment of defendant, at the time of the trial, for some three years; that plaintiff hired him and Welk and fixed their wages; and that he had seen plaintiff hire and discharge firemen frequently. Frank Welk testified to the same effect.

The evidence showed that the boilers were all connected together; that the water glass was attached to the water column by being engaged by a brass socket at the top and bottom with rubber gaskets resting against the ends of the glass, and pressed sufficiently hard against the glass, by screwing up a nut at the bottom, to prevent the escape of steam or water. In each of the brass connections there was a valve by which water was let in at one end, and steam at the other, from the water column. The glass was about fourteen inches long and three-fourths of an inch in diameter. It was located about eight feet above the floor; there was a valve in an outlet pipe leading off from the bottom of the boilers, about two inches in diameter, used to drain the boilers; there was a surface blow-off valve located back of the boilers, connected with pipes entering the boilers at about the water line, which extended through the boilers and were perforated, so that when the valve was opened the scum from the top of the water would flow off through the pipes. This surface valve was used for the purpose of clearing the boilers from such impurities as might rise to the surface of the water. On top of the boilers there was a suitable escape valve to relieve the boilers whenever the steam pressure was above 120 pounds. There was a four-inch pipe from each boiler, connected with a six-inch pipe that conveyed steam to the engine. At the time of the accident the engine was in operation, making about 70 revolutions per minute. The surface valve was not used except to remove impurities from the boiler. It was opened by means of a wrench, and the operation consisted in placing the wrench on a nut or nipple at the top of the valve, and turning it half around, to open it full. The wrench was hung near the valve. The evidence further showed that the plaintiff, shortly before he was injured, placed a ladder in position and went up to insert a new glass in the proper place on the water column; that he attached the glass, and later went up to examine it, when it burst and he was injured.

In respect to the fifth question, covering the subject of whether the fireman opened the surface blow-off valve, and in respect to whether the glass was broken by reason of such opening of the valve, plaintiff testified, that while standing on the ladder, the fireman passed him, going toward the back of the boilers, and immediately afterwards the glass burst, causing the injury; that he immediately got down from the ladder and went to the back of the boilers, supposing that the blow-off pipe had been opened, and found the fireman standing there with his hand on the wrench attached to the valve, and the valve wide open; that he immediately closed the valve, then returned to the front of the boilers and closed the valves connecting the water column with the glass, then went and got a new glass and put it in. The fireman testified, in effect, that he did not open the valve or go to the back end of the boiler at all; that he noticed before plaintiff was injured that the glass was broken, and asked him to put in a new one; that plaintiff thereupon put in a glass; that it leaked at the bottom; that Welk then, at plaintiff's request, handed him a wrench and then stood close by him and saw him turn the wrench to tighten up the connections, when the glass broke; that plaintiff immediately came down and ran into the engine room, and another engineer came and put in a new glass. Mr. Paul testified that he saw plaintiff a few moments after the accident, at which time plaintiff said that he had the glass in all right; that it leaked a little and he took a wrench and screwed up the botton nut on the glass and snapped it; that the injury was caused by his own carelessness. Olaf Jorgenson testified that he was one of the engineers and was in the engine room at the time plaintiff was injured; that plaintiff came into the engine room wet and bleeding; that he said he was hurt by the water glass; that the witness asked how it occurred, and plaintiff said he was setting up the jam nut on the glass with a wrench; that after witness helped him wipe his eye as best he could, plaintiff left the engine room for the office, and witness went and put in a...