Powalske v. Cream City Brick Co.

• Citation: 110 Wis. 461,86 N.W. 153
• Parties: POWALSKE v. CREAM CITY BRICK CO.
• Decision Date: 21 May 1901
• Court: United States State Supreme Court of Wisconsin

110 Wis. 461

86 N.W. 153

POWALSKE

v.CREAM CITY BRICK CO.

Supreme Court of Wisconsin.

May 21, 1901.

Appeal from superior court, Milwaukee county; O. T. Williams, Judge.

Action by Benedick Powalske against the Cream City Brick Company. Judgment for defendant, and plaintiff appeals. Affirmed.

At the time of and for a considerable period before the occurence complained of, defendant was a manufacturer of brick and plaintiff was one of its employés. A part of the brickmaking plant consisted of a building, in which was located, near the north end, a machine called a “crusher,” through which the clay was put before being made up into brick. The clay was conveyed to the crusher in this way: In the north end of the building was an opening 5 feet square, the lower side of which was at the surface of the ground. The clay bank was about 200 feet north of such opening, and a roadway led from one to the other. Two one-horse dump carts were used, attended by a boy. There was a horse for each cart. The boy would locate one of the carts at the clay bank, and when it was loaded drive it to the opening, there discharge the load, and then return to the clay bank, take the other horse and repeat the operation, and so continue the work during the day. He was required to be very active in order to keep the crusher supplied with clay. As he approached the vicinity of the opening with his horse and dump cart, he would turn halfway around and back the cart up so that the tail end thereof would be inside the opening. He would then descend from the cart on the west side thereof, and release the cart box so as to admit of its being tipped up. He would then go to the back end of the cart and take out the tail board or receive it from the man inside the building. If the cart box did not then readily tip up so as to dump the clay or permit of its being removed from the box readily by the man inside the building, the boy would go to the front end of the cart and lift on the box sufficiently to tip it up. The lower sides of the wheels of the cart, when it was in position at the opening, were below the surface of the ground outside the cart track. On the west side of the cart and along the line where the boy was required to travel in going to the opening to remove the tail board or receive it as before indicated, was an accumulation of small stones and other rubbish. Such accumulation was from 1 1/2 to 2 feet deep in the pathway and sloped upward to the west to a height of 4 or 5 feet. The stones, of which the refuse was mainly composed, had been picked out of the clay by the man inside the building and thrown through the opening. The form of the stone pile was such that there was a tendency of the stones to roll down into the pathway. The stones were slippery from the damp clay, so that as the boy walked over them he was in danger of slipping and falling. About 3 feet west of the opening and 1 foot above the level thereof, the driving shaft, from which was belted the machinery inside the building, protruded through the end of the building about 2 feet. Such shaft was about 2 1/2 inches in diameter. It revolved very rapidly when driving the machinery. It was put up in the manner indicated for convenience in repairing it in case of a breaking thereof, the idea being that the fractured end could be cut off and the shaft moved south without taking it out of its bearings. As the boy walked by the west wheel of the cart to remove or receive the tail board as indicated, the west side of his body approached to within about 18 inches of the revolving shaft, which was at that point about opposite his breast. He had no occasion to move nearer to the shaft than that in the course of his work, and no occasion to use his hands in that direction unless to save himself in case of slipping on the stones.

Plaintiff, a lad 15 1/2 years of age, was, on September 19, 1897, in charge of the delivery carts. He was a boy of moderate intelligence, having attended school considerably, though he was a dull scholar, and was a boy of considerable experience as a laborer. Previous to the day in question he had been employed about the brickyard in various capacities suitable for one of his age, the last being that of driving a team to deliver brick to customers. On the morning of the day named, for the first time, he was set to work with the delivery carts. He was obliged to leave his horse occasionally, after placing the cart in position at the opening, to do other work. One of the horses was troublesome at such times, in that he would not stand quietly, but would go forward and otherwise move about. To obviate that difficulty plaintiff requested the foreman to give him a rope, and was thereupon directed to procure one that was on a shelf just inside the opening. He used the rope by tying one end to the ring of the bridle bit and the other to a stone after placing his horse in position for the clay to be unloaded. During the noon hour, to facilitate the operation of tying the horse, plaintiff made a hook out of a piece of wire and tied one end of the rope to that, and took an old tin pail, filled it with stones, tied a canvas over the top, and tied the other end of the rope to the bail thereof. Thereafter, when he placed his horse in position for clay to be unloaded, he would engage the hook with the ring of the bridle bit. The foreman observed the way plaintiff was using the rope. About 4 o'clock in the afternoon, the man inside the building complained that clay was not coming fast enough, whereupon plaintiff resolved to give his undivided attention to that business, which rendered further use of the rope unnecessary. Thereupon he removed the rope from the pail and proceeded with it, on the west side of the horse and cart, to the opening, for the purpose of replacing it on the shelf from which he obtained it. As he proceeded he was engaged in winding the rope in a coil around his wrist. As he arrived at the opening he caught the rope sufficiently near the loose end to enable him by a single movement to place it on the shelf, at which instant he made an involuntary movement in some way, whereby the end of the rope was thrown up and carried by the wind, which was blowing briskly, west against the shaft, which instantly caught it and wound it up so rapidly that he was...