Nyback v. Champagne Lumber Co.

• Decision Date: 25 June 1901
• Docket Number: 722.
• Parties: NYBACK v. CHAMPAGNE LUMBER CO.
• Court: U.S. Court of Appeals — Seventh Circuit

109 F. 732

NYBACK v. CHAMPAGNE LUMBER CO.

No. 722.

United States Court of Appeals, Seventh Circuit.

June 25, 1901

Upon the return of this case to the circuit court after the decision upon the first writ of error (33 C.C.A. 269, 90 F 774), an amended declaration was filed, in which to the original charge of failure properly to light the mill, to instruct the plaintiff where and how to do his work, and to warn him of the dangers incident thereto, a charge was added of negligent construction of the mill, in that proper and adequate guards, railings, or other means of protection were not placed and maintained at the south end and the east side of the hole or chute into which the plaintiff stepped, making it reasonably safe to employes working about it, which, it was alleged, could have been done without impairing the use for which the chute was designed. The amended declaration, as filed, omitted any reference to the question of employment by 'an independent contractor,' but a further amendment was inserted, containing, with other averments, the allegation 'that the defendant so constructed and maintained said machinery and appliances (with the unguarded hole in the floor) with a view of their being used and operated by employes, and of having such employes do service in near proximity thereto, and made it known to the general public that such was the purpose of the construction and maintenance of said sawmill with such machinery and appliances, all of which action on the part of defendant constituted a general invitation to all persons desiring or finding employment in and about such sawmill. ' This seems to have been treated by the court and by the counsel upon both sides as sufficient to present an issue which should justify a recovery by the plaintiff, though not in the employment of the defendant at the time, if the injury resulted from negligent and faulty construction.

The assignment of error contains forty specifications, directed mainly to the court's charge, but most of them, besides being general and indefinite, were not taken until after the jury retired. Some of the specifications, instead of embracing a single proposition, as required by the rules of the court (Columbus Const. Co. v. Crane Co., 41 C.C.A. 189, 101 F. 55; Stewart v. Morris, 37 C.C.A 562, 96 F. 703), are based upon portions of the charge which include a number of distinct propositions; in one instance as many as eight, and in another twelve.

The charge of the court was lengthy, and, by reason of the method of make-up and delivery, was confused, and in some particulars inconsistent. It consisted first of a series of 'special requests on the part of the plaintiff, ' covering three pages of the printed record, and presenting both fact and law, as if designed to take the place of a charge by the court; next, of a like series of requests by the defendant, covering as much as eight pages of the record devoted mainly to a presentation and discussion of the evidence bearing upon the questions in dispute, and especially upon the question of fact, which is argued at length, whether the plaintiff at the time he was injured was an employe of the defendant or of another, who was an independent contractor; and next of the court's own charge, which, excepting parts omitted as now unimportant was as follows: 'I had prepared, before I knew that these special instructions were to be given to the great length to which they have been drawn out, a general charge, which it is the habit of the court to do. I had modified the charge given three years ago on the trial, which is quite lengthy and covers all the issues in the case, intending to give it to the jury. But, where counsel take it into their own hands to instruct the jury, I do not consider that it is part of the duty of the court to give general instructions covering the same ground, and therefore I shall submit the case to you upon the instructions which counsel have drawn, without giving the general charge of the court. * * * It seems to the court that the main issue in this case, after we get past the question whether the plaintiff was in the employ of the defendant, * * * relates to the question of responsibility for the injury. Who was responsible for the injury? The evidence shows that this young man came there a stranger (never had worked in a mill), and went to work in the mill on the afternoon of July 12, 1892, and that same afternoon fell into that hole (stepped into the hole) and threw his hand upon the saw, and was thereby injured. The hole was made for the purpose of letting down the refuse slabs and stuff that came from the slasher. It had always been there and had been operated in that way. There is no evidence upon the part of the plaintiff tending to show that the mill was not constructed according to other mills in that vicinity,-- other sawmills. On the part of the defendant a large number of witnesses testify that the mill was constructed like all other mills in northern Wisconsin, according to the usual custom of constructing mills in that respect. It is claimed on the part of the plaintiff that there should have been a guard around that hole, but the other witnesses tell you why there should not be a guard. They say if it was fenced up two or three feet high, so that a boy or man could not get into it, it would be of no use whatever for the passage of this refuse stuff, some of which is quite long. The evidence shows that the hole led down to a chute underneath, which after passing through the floor shot off to one side. The evidence tends to show that the long stuff or stuff of any length would not go through, and the chute would be practically of no use, if there was a guard around there to keep a man out. Now, I do not want to take that question from the jury; it is in the case; and yet I hardly think the jury will be warranted in finding that the mill was not properly constructed, so far as that hole is concerned, and that is all the allegation there is in regard to the construction of the mill. The only other ground of recovery has regard to the light. It is a question of fact for the jury whether there was any defective light there, and whether, if there was, the defendant was responsible for it. There is only one witness on the part of the plaintiff, and that is the plaintiff himself. All of the defendant's witnesses-- a large number of them-- testified that this accident happened about sundown, and that it was practically broad daylight, and that the hole could be seen by anybody. * * * There is no doubt that a person entering into the employ of another in a sawmill, where there is machinery of that kind which is extrahazardous, takes the ordinary risk of the employment. There is no doubt about that; he takes the ordinary risk of employment; and, while it is the duty of the employer to advise him of all extrahazards and dangers connected with the business, it is not the duty of the employer to advise him of the ordinary hazards which are perfectly plain to any one engaging in the business. * * * It is the duty of the person entering into that employ to use his eyes. No matter what his age is, he must use his eyes. And that hole, according to this photograph, shows plain enough, and the saws show plain enough. Plaintiff says he didn't see the hole or see the saws. Well, he was there in the sawmill. It wouldn't be the duty of the defendant to inform him that there were saws there if they were right in plain sight. He was engaged to work about the saws, and it was part of his business to saw slabs there,--to take the stuff that came from the slasher, to push them up against the saws, and saw them into four-foot pieces to make into lath. That was part of his business, and his principal business. Can he say to the jury that he didn't know there were any saws there? Isn't he bound, if there were saws in plain sight, to see them with his eyes; and, if the hole was in plain sight, wasn't he bound to see the hole? The action is founded on the negligence of the defendant, and, if you cannot say from a preponderance of the weight of evidence that there was negligence on the part of the defendant that caused the accident, you cannot find a verdict against the defendant. You cannot charge them with a loss they are not responsible for. Now, if the mill was in perfect order, and made according to the usual custom of mills, and it was properly lighted, what else is there from which you can charge the defendant in this case? Then, furthermore, there is no question but that the plaintiff must have been in the exercise of ordinary care and prudence himself. * * * The question is whether from the preponderance of the evidence you can say that this mill was improperly constructed or improperly lighted, by reason of which this plaintiff was injured without fault on his part. If he didn't see that hole, ought he to have seen it? Or was he guilt of any ordinary want of care or prudence in not knowing there was a hole there if it was in plain sight? Was he guilty of any want of ordinary care and prudence in not knowing that the saw was there coming up through the slasher where he was set to work if a man or ordinary eyesight could see it by using his eyes? These are questions for you to determine in fixing the responsibility for this injury. * * * '

At the conclusion of the charge, counsel for the plaintiff said 'I except to where the court says the master was not obliged to warn him of the ordinary dangers which the plaintiff could see. I also except to that part where the court says, in substance, if the mill was constructed in the customary manner, what else could the plaintiff complain of? etc.;' and thereupon the jury retired, but afterwards returned for further instruction; and, one of the jurors having...