Ruck v. Milwaukee Brewery Co.

• Decision Date: 10 January 1911
• Citation: 129 N.W. 414,144 Wis. 404
• Parties: RUCK v. MILWAUKEE BREWERY CO.
• Court: Wisconsin Supreme Court

144 Wis. 404

129 N.W. 414

RUCK

v.MILWAUKEE BREWERY CO.

Supreme Court of Wisconsin.

Jan. 10, 1911.

Appeal from Circuit Court, Milwaukee County; Lawrence W. Halsey, Judge.

Action by John Ruck, by guardian, against the Milwaukee Brewery Company. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Action for personal injuries. Plaintiff, at the time of his injury, July 3, 1907, was a young man 16 years of age, and of average intelligence. Defendant was the owner of a brewery, wherein it manufactured and bottled beer. Previous to the sale thereof, it was put through a sterilizing process, which consisted in placing about 1,800 filled and corked bottles in layers separated by iron sheets in a vat or tank into which cold water was let. Later, steam was injected, and the temperature of the water in the vat raised to about 140 degrees Fahrenheit. The bottles were kept in this temperature for about 30 minutes, when cold water was turned into the vat from below, and the hot water was floated off on top through openings, and the temperature reduced to about 88 degrees. The heating of the beer in the bottles caused it to expand, and the carbonic acid gas in the beer was liberated, thus subjecting the bottles to considerable pressure. Beside the vats or tanks were moveable trays, that rolled down on rails to what was called the labeling machine. When the bottles had been in the vat or tank the required time, they were removed therefrom by hand and placed on these trays. Plaintiff was employed by the defendant in June, 1907, did sundry work about the factory, but principally acted as a helper to men who distributed and delivered defendant's beer. On the day of the injury he was assisting one Frank Kroll, and his work consisted in moving the bottles further to the side of the tray, thus making more room on the tray near Kroll for placing bottles thereon taken by the latter from the tank. When he had worked about four or five minutes, a bottle exploded, and the pieces of flying glass struck him in the face and destroyed his right eye. At the close of the evidence, on defendant's motion, the court directed a verdict in its favor, and from a judgment entered thereon the plaintiff appealed.Glicksman, Gold & Corrigan, for appellant.

Doe & Ballhorn, for respondent.

VINJE, J. (after stating the facts as above).

The complaint, among other charges of negligence against the defendant, contains an allegation that bottles, while being taken from the pasteurizing vat, and while standing still on the tray after being taken therefrom, would occasionally explode; that defendant knew, or in the exercise of ordinary care ought to have known, of such explosions; that the plaintiff did not know, and could not in the exercise of ordinary care have known, thereof; and that it was the duty of the defendant to warn him of such danger incident to his employment.

Plaintiff testified that the bottle that exploded and injured him had been standing still on the tray a minute or two before the explosion occurred. There is ample evidence on the part of the plaintiff to show that bottles, whether in the tank, standing on the tray, or while being handled, occasionally exploded. Some of the evidence shows that such explosions were quite frequent and that defendant had knowledge thereof. The evidence on behalf of the defendant is that bottles would occasionally explode when being handled roughly or struck together, but that no explosions ever took place after they were taken from the pasteurizing vat and were standing still on the tray. Under such conflicting evidence, it was for the jury to say whether or not bottles occasionally exploded while standing still, and whether or not the defendant knew, or in the exercise of ordinary care ought to have known, of such explosions.

It is contended on the part of the defendant that, if explosions took place, the plaintiff must have known of them, because he had been working in the room several weeks when the explosion that caused his injury occurred. Plaintiff's testimony, however, is that he had been employed as a sweeper and general helper, and that he had never been employed to do the work he did at the time he was injured, and, further, that he did not know that bottles exploded either when handled or standing still. Counsel for defendant claims that this testimony is so incredible that no weight should be attached thereto. We cannot concur in this view. It was for the jury, under all the evidence, to determine whether the plaintiff knew, or in the exercise of ordinary care ought to have known, that bottles occasionally exploded.

The plaintiff admitted that the foreman had told him to be careful with the bottles--to be careful not to let the bottles strike together--and it is claimed by the...