Meyer v. Ladewig

• Decision Date: 29 January 1907
• Citation: 130 Wis. 566,110 N.W. 419
• Parties: MEYER v. LADEWIG.
• Court: Wisconsin Supreme Court

130 Wis. 566

110 N.W. 419

MEYER

v.LADEWIG.

Supreme Court of Wisconsin.

Jan. 29, 1907.

Appeal from Circuit Court, Waukesha County; E. B. Belden, Judge.

Action by Albert C. Meyer against William E. Ladewig. From a judgment in favor of plaintiff, defendant appeals. Reversed, and remanded for new trial.

This action was brought to recover damages alleged to have been sustained by plaintiff in consequence of injuries received by a splinter of steel flying from a hammer striking him in the eye and causing loss of sight. The charge of negligence is that the defendant furnished his employés with all tools, machines, and other appliances necessary for carrying on the work; that it became the duty of plaintiff to assist other employés in making repairs upon a boiler, and that such repairs consisted in the removal and replacing of certain flues; that it was necessary to perform this work in the nighttime, plaintiff being directed by defendant to assist in the work; that to perform such work hammers of certain shapes, weights, and temper were required; that plaintiff was furnished by defendant with a hammer which was improperly tempered too hard and brittle, in consequence of which a piece of steel flew off the same while plaintiff was using it and destroyed the sight of his right eye; that the hammer should have been annealed in order to make it safe for such use; and that plaintiff did not know this, and defendant did. The answer put in issue the material allegations of the complaint, and alleges that the hammer was made by a competent toolmaker, and has been used constantly by defendant for many years; that its condition was obvious to any one using it, and that the accident was caused by the manner of using rather than by its condition; and that plaintiff was guilty of contributory negligence. Upon the trial a special verdict was found by the jury as follows: “(1) Was the hammer used by the plaintiff at the time of his injury reasonably safe for the use to which it was put by him at that time? Answer. No. (2) If you answer the first question ‘No,’ then was the defendant guilty of negligence in furnishing said hammer to plaintiff for the purpose of doing the work that plaintiff was directed to do at the time in question? Answer. Yes. (3) If you answer the second question ‘Yes,’ then was such negligence the proximate cause of plaintiff's injury? Answer. Yes. (4) Was the plaintiff guilty of any want of ordinary care which contributed to his injury? Answer. No. (5) In what sum do you assess plaintiff's damages sustained by reason of the injury complained of? Answer. $5,000.” The usual motions were made on behalf of the defendant, which were overruled, and judgment entered upon the verdict in favor of the plaintiff, from which this appeal was taken.Vilas, Vilas & Freeman, for appellant.

Ryan, Merton & Newbury, for respondent.

KERWIN, J. (after stating the facts).

The plaintiff at the time of the injury was 28 years of age, and had been in the employ of defendant for about four years, having learned his trade as machinist of defendant. When injured he was at work putting flues in a boiler. He did some work with a light hammer of his own and afterwards called for a heavier one, which was given him by one of the employés, and which he was using when injured. The work was being done in the nighttime by the light of a candle. In putting in the flues it was necessary that the ends should be rolled out. For this purpose an iron instrument, known as a “rolling pin” or “flue roller,” was inserted in the end of the flue and the outer end struck with a hammer; the effect being to make the flue water-tight. The plaintiff was working at the end of the boiler in a space four feet two inches by two feet three inches and seven feet high, driving in the flues, when a splinter flew from the hammer he was using, causing the injury. When injured, he was standing in a cramped position, owing to lack of room, and striking a left-hand blow with both hands upon the rolling pin, which was sticking out about nine inches, so that there was not much room between the wall and the rolling pin after it is in the flue. The plaintiff testified “there isn't much room between the wall and the rolling pin after it is in the flue to strike a big square blow. You have to cramp your hammer around to get any force on it.” After the accident it was found that there were about 10 chips out of the edge of the striking face of the hammer, and only two of them appeared to be fresh or recently broken out. There is evidence that the chipping might be caused by striking an unsquare or glancing blow, or by the hammer or roller being too hard; that, if a hammer was too hard, it could be remedied by annealing; that it would be impossible to tell by looking at this hammer whether it was too hard or too soft; that plaintiff had worked many times in the night on the same kind of work with this hammer, it having been in use there for several years; that whether this hammer was too hard could only be discovered by using a file on it, and upon testing it the morning after the injury it was found to be hard; that constant pounding will cause hammers to grow harder; that the work required a hammer pretty hard, just hard enough so a file would cut it; and that such a hammer would be liable to chip if struck with a glancing blow. There is no evidence of any actual knowledge on the part of the defendant that the hammer was too hard, or in any way defective or unsafe.

But it is claimed on the part of plaintiff that it was the duty of defendant to inspect, and the case was tried and submitted to the jury upon that theory. So the main and controlling question is: Did the duty of inspection rest upon the defendant? If the hammer was a simple tool, there was no such duty. In Stork v. Charles S. C. Co., 127 Wis. 322, 106 N. W. 843, this court said: “Another qualification of the master's liability indulged in case of such simple tools and appliances is exemption from a...