Nyback v. Champagne Lumber Co.

• Decision Date: 03 January 1899
• Docket Number: 481.
• Citation: 90 F. 774
• Parties: NYBACK v. CHAMPAGNE LUMBER CO.
• Court: U.S. Court of Appeals — Seventh Circuit

90 F. 774

NYBACK v. CHAMPAGNE LUMBER CO.

No. 481.

United States Court of Appeals, Seventh Circuit.

January 3, 1899

J. J Patek and D. B. Nash, for plaintiff in error.

John Van Hecke and Edward M. Smart, for defendant in error.

Before WOODS, JENKINS, and SHOWALTER, Circuit Judges.

WOODS Circuit Judge.

The only question on this record is whether the circuit court erred in directing a verdict for the defendant. The action was brought by John Nyback, the plaintiff in error, to recover damages for a personal injury suffered while at work in a sawmill of the Champagne Lumber Company, the defendant in error, on July 12, 1892. The substance of the declaration is: That on and prior to the date mentioned the defendant owned, at the city of Merrill, Wis., a sawmill, in which besides other machinery and appliances, there was a slasher used for the purpose of sawing slabs and edgings. That on the south side of the slasher, and parallel therewith, was a series of short rollers, used for carrying from the main saw of the mill the lumber, edgings, and timber sawed thereon. That at the east end of the slasher, and close to the line of rollers, there was an 'unguarded opening' in the floor of the mill. That at and near the slasher the mill was lighted at night with a small electric light suspended at the west end of the slasher at such a height that the shadow of the slasher frame made the opening indistinguishable to a person unacquainted with the mill, although exercising ordinary care. That the premises, machinery, and appliances on and prior to July 12, 1892, 'were in the aforesaid unsafe condition,' and had been constructed and maintained by the defendant 'in such condition.' That at that day the plaintiff was 18 years of age, and, having just arrived at Merrill from Russia, and being wholly ignorant of the mode of construction of sawmills and of the location of machinery and appliances used therein, and wholly inexperienced in the work of sawmills, and in the use of machinery of any kind, was employed by the defendant to labor in said mill at nighttime, to begin at 6:45 p.m. of that day and was directed to load timbers at the east end of the mill on carts, and then to push certain other timbers on and along the rollers, and pile them on the floor of the mill. That he began the work of pushing and conveying timbers on and along the rollers about 8 o'clock in the evening of that day. That the defendant well knew of the location of the rollers the slasher, and the hole in the floor, and that the hole was unguarded; that while in the performance of his duty the plaintiff was obliged to be in close proximity to the hole; that the location of the opening was insufficiently and improperly lighted; that a person not acquainted with the mill could not, in the exercise of ordinary care, notice the same in the nighttime; and that the plaintiff was a minor, wholly unacquainted with said sawmill, and inexperienced in the work in sawmills or about machinery,-- but notwithstanding such knowledge, the defendant wholly neglected to inform the plaintiff of the condition or existence or location of the opening or of the dangers of working in the place he was obliged to work in as aforesaid, or of any danger connected with the work or premises, and failed and neglected to inform or caution him as to the place he should occupy while performing, or as to the manner of performing, his duty. That the plaintiff was wholly ignorant of the dangers attending such employment, and of the existence or location of said hole; and that on the day aforesaid, while engaged in an attempt to remove a heavy piece of timber from the rollers to the floor of the mill, without fault or...