Odegard v. N. Wis. Lumber Co.

• Decision Date: 19 February 1907
• Citation: 130 Wis. 659,110 N.W. 809
• Parties: ODEGARD v. NORTH WISCONSIN LUMBER CO.
• Court: Wisconsin Supreme Court

130 Wis. 659

110 N.W. 809

ODEGARD

v.NORTH WISCONSIN LUMBER CO.

Supreme Court of Wisconsin.

Feb. 19, 1907.

Appeal from Circuit Court, Sawyer County; W. C. Silverthorn, Judge.

Action by Ole Odegard against the North Wisconsin Lumber Company. From a judgment in favor of plaintiff, defendant appeals. Reversed and remanded.

This is an action to recover damages for personal injuries sustained by plaintiff April 21, 1902, while employed in defendant's sawmill at Hayward, Wis. On the day named the plaintiff was working as a rider upon one of the saw carriages in the mill, which carriage was operated by means of what is known as a “steam feed,” which lets steam into a long cylinder in which a piston works, which is attached to the carriage and propels it very rapidly forward and back past a band saw, thus sawing lumber from a log or cant fixed upon the carriage. The head sawyer operates the carriage by means of a lever which moves a valve in the steam feed apparatus, and lets in or shuts off the steam. Just prior to the accident the sawyer, one Magnusson, called the engineer, Lee, and stated that the feed was working hard. After finishing the sawing of the log then on the carriage, the sawyer stepped aside, and Lee took hold of the lever and ran the carriage back and forth a few times, apparently without difficulty, and the sawyer told him to open the valve wide and he would feel it. The plaintiff meanwhile remained on the carriage. Lee then opened the valve wide and the carriage started rapidly past the saw. Lee failed to reverse the lever in time and the carriage bumped against the bumper, the plaintiff was thrown down on the carriage, which at once started rapidly back, and plaintiff's leg, which was projecting over the edge of the carriage, was sawed off below the knee as the carriage passed the saw. The sawyer grabbed the lever as the carriage passed the saw and stopped the carriage. The plaintiff's claim was that the steam feed apparatus was defective, in that the pipe conducting the exhaust steam away from the valve, called the “port pipe,” was too small, and that there were other defects of which he was ignorant, but which the defendant well knew, causing the carriage to jerk or stick. He also claimed that Lee was an incompetent engineer and known to be so by defendant, and that the accident was the combined result of the defects in the apparatus and the incompetence of Lee. The jury returned a special verdict as follows: “(1) Was the North Wisconsin Lumber Company, the defendant, at the time mentioned in the complaint in this action a corporation existing under the laws of the State of Wisconsin? A. (by the Court): Yes. (2) Was the said North Wisconsin Lumber Company, on April 21, 1902, the owner of and engaged in operating a sawmill at Hayward, Wis? A. (by the Court): Yes. (3) Was the plaintiff, Ole Odegard, on said 21st day of April, 1902, as an employé of the defendant, the North Wisconsin Lumber Company, engaged in its service in the work of riding upon the log carriage in the said mill while the same was in operation in the manufacture of lumber? A. Yes. (4) Was the said Ole Odegard, while so engaged on that day, thrown down upon the said carriage in such a way that as the carriage was impelled toward the band saw his left leg was cut off by said saw a short distance below the knee? A. Yes. (5) Did any want of ordinary care on the part of the plaintiff, Ole Odegard, contribute to produce his injury? A. No. (6) Was said Reodor Lee a competent engineer at the time of the accident by which the plaintiff Odegard lost his leg? A. No. (7) If said Reodor Lee was an incompetent engineer at the time of the accident by which Ole Odegard lost his leg, did the North Wisconsin Lumber Company know, or ought it reasonably to have known, prior to the accident aforesaid that said Reodor Lee was incompetent. A. Yes. (8) Was the said injury to the plaintiff, Ole Odegard, caused by the incompetence or want of skill as an engineer on the part of said Reodor Lee? A. Yes. (9) Did the defendant, the North Wisconsin Lumber Company, furnish its employé, said Ole Odegard, at the time of the accident, in the said steam-feed apparatus which moved the carriage upon which he was riding, a reasonably safe appliance for the work in which he was engaged? A. No. (10) If the said steam-feed apparatus was not a reasonably safe appliance for the work in which said Odegard was engaged at the time that he lost his leg, did the defendant, the North Wisconsin Lumber Company, know, of ought it reasonably to have known, prior to the said accident that the said steam-feed apparatus was not a reasonably safe appliance for the work in which said Odegard was engaged when the accident occurred? A. Yes. (11) Would the majority of millowners and superintendents under the circumstances of the situation in which Odegard was placed at the time of the accident have reasonably expected and foreseen that the said steam-feed apparatus would be likely to cause an injury to the plaintiff, Odegard, by reason of the condition in which it then was? A. Yes. (12) Would the majority of millowners and superintendents under the circumstances of the situation in which Odegard was placed at the time of the accident have reasonably expected and foreseen that Reodor Lee would be likely to cause injury to the plaintiff, Odegard, by reason of the incompetency as an engineer of the said Reodor Lee? A. Yes. (13) Was the danger to be apprehended from riding the carriage in question at the time of the accident so great, immediate, and constant that a reasonably prudent person, under all the circumstances in which Odegard was then placed and acted, would not subject himself to it? A. No. (14) Was the defendant guilty of negligence in failing to furnish the plaintiff a reasonably safe appliance in the said steam-feed apparatus with which to do his work? A. Yes. (15) If you answer the last question ‘Yes,’ then was such negligence of the defendant the proximate cause of the injury? A. Yes. (16) What damages has the plaintiff, Odegard, sustained by reason by his said injury? A. $8,500.” Judgment for the plaintiff was rendered on this verdict, and the defendant appeals.Bundy & Wilcox (Wickham & Farr, of counsel, for appellant.

Sanborn, Lamoreux & Pray, Sam J. Williams, and H. B. Walmsley, for respondent.

WINSLOW, J. (after stating the facts).

A question of jurisdiction arises at the threshold of the case which much be first examined.

The action was commenced in Sawyer county. This county at that time had two terms a year, one commencing on the first Monday in June and the other on the second Monday in November. The summons was served June 11, 1904, and hence the action was not triable at the June term. The answer was served in August following. On the 6th day of October, 1904, an affidavit alleging prejudice of the presiding judge was filed by the defendant, and at the same time an order to show cause, returnable October 17th, was obtained and filed, requiring the plaintiff to show cause why all further proceedings in the action should not be stayed until the plaintiff should pay the taxed costs in two previous actions commenced by the plaintiff against the defendant on the same cause of action and which had been dismissed. This motion was based on an affidavit made by one of the defendant's attorneys stating the facts. After the filing of these papers the presiding judge called upon the honorable W. C. Silverthorn, the presiding judge of the Sixteenth circuit, to hear the motion, and Judge Silverthorn attended and heard the motion at Hayward, Sawyer county, October 28th, and continued the same for further hearing, but in the meantime ordered that the plaintiff's proceedings be stayed so far as moving the case for trial at the next November term of court was concerned until such costs were paid. The costs were not paid, and the case was not noticed for trial at the November term, and on May 25, 1905, Judge Silverthorn made an order and sent it to the clerk of court of Sawyer county vacating the temporary stay, and authorizing the plaintiff to notice the cause for trial at the June term. Thereupon the case was noticed for the June term by the plaintiff. On June 5th, being the last day of the November, 1904, term, the defendant appeared in court and moved that the case be sent to another county, but the motion was denied by the presiding judge. The action was called for trial at the June term on the 26th day of that month, at which time Judge Silverthorn attended and presided, and the defendant renewed the motion to send the case to another county, as well as the motion for a stay of proceedings until the costs of the previous actions were paid; but both motions were denied.

The appellant's contention is that because no judge attended to try the cause during the November, 1904, term it became the duty of the presiding judge to change the place of trial under the terms of section 2625, Wis. Rev. St. 1898, as amended by chapter 101, p. 128, Laws 1901, and chapter 282, p. 422, Laws 1905. That section provides that the court shall change the place of trial of any action or special proceeding on the application of a party thereto who shall file his affidavit alleging prejudice of the presiding judge, but that, in lieu of granting such application, the judge may in his discretion retain the action or proceeding in the same court “until the last day of the then current term if the application is made at a term at which the action is triable, or the next term, if it is made in vacation, and in the meantime shall call upon some other judge or judges to attend and hold court during such current or next term for the purpose of exercising jurisdiction in all actions and proceedings in which applications for change of the place of trial have been made for such reason. And while so in attendance said judge may make all orders and hear all applications and motions that may be...