Schmitt v. Hamilton Mfg. Co.

• Decision Date: 10 March 1908
• Citation: 115 N.W. 353,135 Wis. 117
• Parties: SCHMITT v. HAMILTON MFG. CO.
• Court: Wisconsin Supreme Court

135 Wis. 117

115 N.W. 353

SCHMITT

v.HAMILTON MFG. CO.

Supreme Court of Wisconsin.

March 10, 1908.

Appeal from Circuit Court, Manitowoc County; Michael Kirwan, Judge.

Action by Joseph J. Schmitt, by guardian, against the Hamilton Manufacturing Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The plaintiff, when injured, as hereinafter stated, was 19 years of age, well educated, intelligent, having had several years of employment which brought him in contact with wood-working machinery of various kinds, and fully appreciated that, when an appliance in a machine served to cut or shape a board pressed against it, it would injure his fingers if they got to the spot where the board was operated on. He knew what a shaper machine was for, namely, to form or shape the edge of a board, and that was accomplished by revolving knives. He had heard that such a machine was dangerous, and had been reluctant to work upon the machine in question at the only time when employed to do so by himself for that reason, but claimed that he was induced to do so by the assurance that the knives which trimmed the edges of the board were all below the upper surface of that board so that his hands, being on top of the board, could not be injured. He testified that he had never observed the mechanism of the shaper, or the place or arrangement of the knives when they were stationary so that he could see them. On May 25, 1896, he was called on to aid his boss in propelling through the shaper a four-foot wide board, seven-eighths of an inch thick, in order to shape the edge thereof. This was done by a pair of revolving knives resembling chisels, projecting horizontally from the circular head of a vertical spindle about three inches in diameter, which revolved above the surface of a plane table on which the board was pushed. They revolved at the velocity of 6,500 revolutions a minute, so that the knives as such were not perceptible, but appeared as a bright rim or blur around the outside of the head of the spindle. As matter of fact these knives were over two inches wide, and only the lower portion of them was used in giving the shape to the board's edge; the upper portion of them, which was more protrusive, being above the upper surface of the board, and protruded inward over the edge some three-quarters of an inch. The plaintiff's duty was to place his hands upon the upper surface of this board and push it forward so that the right side of it passed along these knives. Considerable exertion of force was necessary to propel it. The board, about seven feet long, had been propelled so far that all except the last seven or eight inches had been shaped, at which time the plaintiff's right hand slipped and was thrust against the revolving knives, a movement of two or three inches being sufficient. The hand was badly mangled. The jury found by special verdict (1) that the fact that the knives extended above the upper surface of the board made the work which plaintiff was then doing dangerous to a person of his age, experience, discretion, and judgment; (2) that he did not know that the knives so extended before he was injured; (3) that the exercise of ordinary care on his part would not have disclosed to him before he was injured the fact that the knives so extended above the face of the board; (4) that defendant failed to warn or instruct plaintiff as to the danger incident to his work at the machine arising from the extension of the knives, aforesaid; (5) that by such failure to warn defendant was guilty of negligence; (6) that the injury was the natural and probable consequence of such negligence; (7) that defendant in the exercise of ordinary intelligence and prudence under the circumstances ought reasonably to have foreseen that such negligence would be likely to result in personal injury to the plaintiff; (8) that the plaintiff was not guilty of any failure to exercise ordinary care which contributed to causing injury; and (9) damages $3,000. Due motions for the direction of a verdict for defendant, for judgment notwithstanding the verdict on the undisputed evidence, and for the reversal of the answers to the several questions, and judgment on the verdict so modified, were duly made and overruled, and judgment rendered for the plaintiff for the damages found, from which the defendant appeals.Roemer & Aarons and J. M. Niven (Nash & Nash, of counsel), for appellant.

Wigman, Martin & Martin, for respondent.

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

The principal contention on appellant's part is that contributory negligence so conclusively appears from the evidence that the trial court should have directed a verdict in defendant's favor. Hardly any rule is more firmly established by judicial decision in this state than that an employé assumes the risk of those perils which obviously attend the conduct of his work with its usual accompaniments and incidents, and...