Nadau v. White River Lumber Co.

• Decision Date: 03 December 1889
• Citation: 76 Wis. 120,43 N.W. 1135
• Parties: NADAU v. WHITE RIVER LUMBER CO.
• Court: Wisconsin Supreme Court

76 Wis. 120

43 N.W. 1135

NADAU

v.WHITE RIVER LUMBER CO.

Supreme Court of Wisconsin.

Dec. 3, 1889.

Appeal from circuit court, Ashland county.

Miles & Shea, for appellant.

Rusk & Boland, for respondent.

TAYLOR, J.

The respondent brought this action to recover damages for an injury which he received while working for the appellant, in its saw-mill. The injury was received by having his leg caught in a cog-wheel gearing, which was in the vicinity of the place where the plaintiff was at work, and crushed so that it became necessary to amputate the leg above the knee. On the trial the plaintiff recovered a verdict, and from the judgment entered on the verdict the defendant appeals to this court. There are certain facts in the case about which there is no dispute. It is undisputed that the plaintiff, at the time of the injury, was about 19 years old. That until he commenced work for the defendant he was wholly unaccustomed to working in a saw-mill, or working in or about machinery. His principal business had been working in the woods, getting out logs, and on drives on the rivers. That at the time he sought for employment from the defendant he desired to get employment on a drive, and not in the mill; and that the foreman of the defendant, who employed him, was told that he had no experience in working in a mill, and would prefer some other employment. The evidence of the plaintiff tends to prove that when the plaintiff stated that he did not want to work in the mill, and preferred other work, the foreman of the defendant told him he would give him an easy place, and one not dangerous, and showed him the place where he was to work. The plaintiff was employed and set at work to pick up the edgings which came down with the boards from the edger, and throw them upon what was called a “slasher.”

The mill in which he was set at work is a large double mill. The main saws were at the north end of the mill. The plaintiff was set at work on the west side of the mill, and alongside of a set of rollers which carried the lumber and edgings from the edger north of him, and by where he was placed; and it was his duty to pick up from the rollers the edgings, and throw them east, across the rollers, and onto the slasher. Immediately behind where the plaintiff was at work was a large set of rollers, which carried the timber and slabs which came from the rotary saw south, to the south part of the mill, and past the place where plaintiff was at work. This large set of rollers was driven by a long shaft, which was about 20 inches above the level of the floor where the plaintiff was at work, and extended considerably further south than it was necessary for the plaintiff to move in doing his work. This long shaft was covered on the top by a plank, about a foot wide, its whole length. Between this covered shaft and the set of rollers which carried the edgings there was an alley about 18 or 19 inches wide; and it was in this alley the plaintiff was to do his work. In doing his work, his back would be towards this long shaft. This long shaft was driven by another vertical shaft, which came up from below, through the floor, under the plank which covered the long shaft. The vertical shaft carried on its top a beveled, horizontal cog-wheel, which matched in a beveled, vertical cog-wheel, of about the same size, attached to the long, covered shaft. These wheels turned inwards from the alley in which the plaintiff was at work, and they were under the plank which covered the long shaft. The point of contact of the beveled cog-wheels was about 18 inches above the floor where the plaintiff was at work, and 8 or 10 inches below the plank that covered the long shaft. On the side where the plaintiff was at work there was no covering, either of the long shaft or the upright shaft, and the horizontal cog-wheel on the top of the vertical shaft came nearly or quite as far towards the alley where plaintiff was at work as the plank covering over the long shaft, so that the clothing of a person passing along this alley, close to the covering, might be caught by these cog-wheels, and drawn into them. The plaintiff had worked in this alley five days before the accident occurred; and he claims, and the evidence tends to show, that at the time of the accident he was at work near this upright shaft, and, as he stooped down to pick up the edgings from the rollers in front of him, with his back towards the shaft, the cog-wheels caught his pants, and drew his leg into the wheels, and crushed it. The evidence also tends to show that in doing his work in the alley it was only occasionally that it would be necessary for the plaintiff to go as far south as to pass by the upright shaft and cog-wheels. As a general rule, he would do his work at a point considerably nearer to the edger than where the cog-wheels were placed. The evidence also shows that when the foreman employed the plaintiff, and ordered him to work at the place mentioned, he did not in any way point out to him the location of this set of cog-wheels, or warn him as to the dangerous character of the wheels, or, in fact, give him any instructions or warning. The plaintiff testified on the trial that he had not noticed these wheels until he was caught by them and injured; that up to that time he had not looked for them, and did not know they were there. They were uncovered on the side next to him, and he could have readily seen them, had he looked in the direction of them. The plaintiff gave evidence tending to show that these wheels, in the situation they were in, were dangerous to persons whose duty it was to work in the narrow alley opposite to them, and also evidence tending strongly to show that ordinarily wheels situate as these were, were covered not only on the top, but on the side; that they could be so covered without any injury to their efficiency, and with a very trifling expense. The jury found a general verdict in favor of the plaintiff, and assessed his damages at the sum of $9,650. The jury also answered the following interrogatories: “ First. Did the defendant exercise ordinary care in placing in its mill the machinery by which the plaintiff was injured? We answer, ‘No.’ Second. Did the defendant exercise ordinary care in running its mill with the machinery in the condition in which it was at the time the plaintiff was injured? We answer, ‘No.’ Third. Was the machinery, in the condition in which it was at the time of the injury, dangerous? We answer, ‘Yes.’ Fourth. Did the defendant know that said machinery was dangerous? We answer, ‘Yes.’ Fifth. Did the defendant have reasonable cause to believe that said machinery was dangerous? We answer, ‘Yes.’ Sixth. Ought the defendant to have known, by reasonable care and diligence, that said machinery was dangerous? We answer, ‘Yes.’ Seventh. If you answer that said machinery was dangerous, was its dangerous character apparent, and obvious to the senses? We answer, ‘It was not, to an inexperienced person.’ Eighth. Did the plaintiff know, while in the employ of the defendant, and prior to said injury, that said machinery was dangerous? We answer, ‘No.’ Ninth. Could the plaintiff have known that said machinery was dangerous, by the exercise of reasonable care and diligence? We answer, ‘Yes, if he was informed of the danger; but he was not informed.’ Tenth. Did the plaintiff's carelessness contribute to said injury? We answer, ‘No.’ Eleventh. Did the plaintiff, prior to the injury, have sufficient knowledge to comprehend the dangers incident to his employment? We answer, ‘No.’ Twelfth. Could the plaintiff, by the exercise of ordinary care, have avoided said injury? We answer, ‘No.’ Thirteenth. If you answer the eleventh interrogatory, ‘No,’ did the defendant know, or have reasonable cause to know, of the plaintiff's said ignorance and inexperience? We answer, ‘Yes.’ Fourteenth. Was the usual and customary means adopted in the mill in question to guard against accident by the cog-wheels and gear where the accident occurred? We answer, ‘No.’ ”

The learned counsel for the appellant claims that the trial court erred in not nonsuiting the plaintiff upon its motion on the trial, upon two grounds: First. They claim that the evidence fails to show any negligence on the part of the defendant in constructing the machinery in the mill, or in neglecting to cover the cog-wheels in the vicinity of the place where the plaintiff was placed to do his work, or in failing to instruct the plaintiff as to the nature of his work when it employed him, or in failing to point out to him the dangerous position of the cog-wheels in the immediate vicinity of the place he was at work; and, second, on the ground that plaintiff was guilty of contributory negligence. That, under the evidence, it must be conclusively held that the plaintiff was aware of the situation of the cog-wheels before the accident happened, and that he had sufficient knowledge to know, and fully comprehend, the dangerous character of said wheels; and consequently he assumed the dangers incident to his work at the time and place of the accident. After a full consideration of all the evidence in the case, we have no hesitation in saying that there was an abundance of evidence given on the part of the plaintiff tending to show that the place where the plaintiff was set to perform his work was not a reasonably safe place, on account of the immediate vicinity of the uncovered cog-wheels. This court has frequently decided that the law demands of a master or employer that he shall furnish a reasonably safe place in which the employe is to do his work. If the master fails in this respect, he is guilty of negligence; and, if an injury occurs to the employe by reason of the dangerous nature of the place where the employe is at work, without any negligence on the part of the employe which contributed to the injury, the employer is responsible to the employe for the damages sustained by him. This rule...