Schweikert v. John R. Davis Lumber Co.

• Decision Date: 15 March 1911
• Parties: SCHWEIKERT v. JOHN R. DAVIS LUMBER CO.
• Court: Wisconsin Supreme Court

145 Wis. 632

130 N.W. 508

SCHWEIKERT

v.JOHN R. DAVIS LUMBER CO.

Supreme Court of Wisconsin.

March 15, 1911.

Appeal from Circuit Court, Price County; James Wickham, Judge.

Action by Paul Schweikert, a minor, by Gottlieb Schweikert, his guardian ad litem, against John R. Davis Lumber Company. Judgment for plaintiff, and defendant appeals. Affirmed.

This action was brought by plaintiff, a minor, to recover damages for personal injuries. The complaint alleges that plaintiff was a minor and inexperienced, and that a sprocket wheel and chain where he was working were unguarded, contrary to law and the duty of the defendant, and that plaintiff was not warned concerning the dangers incident to his work, and did not know of them. The answer puts in issue the allegations of the complaint, and alleges that plaintiff was injured while engaged voluntarily in work outside of his employment and contrary to orders; also alleges contributory negligence and assumption of risk.

The jury returned the following verdict: “(1) Was the sprocket wheel on which plaintiff was injured so located as to be dangerous to employés in the discharge of their duties? Answer: Yes. (2) Was it practicable in the efficient operation of the resaw to securely guard such sprocket wheel? Answer: Yes. (3) Would such a guard have lessened the danger, if any, to the plaintiff, in feeding the resaw? Answer: Yes. (4) Did the defendant fail to exercise ordinary care in failing to securely guard said sprocket wheel? Answer: Yes. (5) Was the failure of the defendant to securely guard said sprocket wheel the proximate cause of plaintiff's injury? Answer: Yes. (6) Did the defendant's foreman, Oscar Rasmussen, before the time when plaintiff was injured, direct the plaintiff to feed the resaw whenever he should be requested to do so by the person who usually fed that machine? Answer: Yes. (7) Was the plaintiff at and prior to the time of his injury inexperienced and ignorant of the dangers incident to the work of feeding the resaw? Answer: Yes. (8) If you answer question number six ‘Yes' and also answer question number seven ‘Yes,’ then did Oscar Rasmussen, at the time of giving such instructions, know that plaintiff was inexperienced and ignorant of such dangers? Answer: Yes. (9) If you answer question number eight ‘Yes,’ then did Oscar Rasmussen fail to exercise ordinary care in failing to warn plaintiff of such dangers? Answer: Yes. (10) If you answer question number nine ‘Yes,’ then was such failure to warn plaintiff of such dangers the proximate cause of plaintiff's injury? Answer: Yes. (11) Was the plaintiff, prior to the time of his injury, chargeable with notice that on account of his inexperience he might probably be injured in attempting to feed the resaw? Answer: No. (12) Did any want of ordinary care on the part of plaintiff contribute to produce his injury? Answer: No. (13) If the court should determine that the plaintiff is entitled to judgment on this verdict, at what sum do you assess the plaintiff's damages? Answer: $2,800.”

Motions were made by defendant for nonsuit, directed verdict, for judgment notwithstanding the verdict, to change the answers of the jury in the special verdict, and for judgment in its favor on the modified verdict and for a new trial. These motions were respectively denied, and judgment ordered for plaintiff on the verdict, which was entered, from which this appeal was taken.

Barry & Barry, for appellant.

W. H. Frawley and T. F. Frawley, for respondent.

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

It appears from the record that the plaintiff at the time of the injury was 18 years old and employed at work feeding material into a resaw machine, which was operated by sprocket chains; that the sprocket wheel on which plaintiff was injured was operated on a shaft at the front of the machine, and in feeding the machine it was necessary to push the slabs which were being resawed under the shaft and sprocket wheel; that the work required close and constant attention; that the sprocket wheel was unguarded; that while plaintiff was so engaged he was injured by having his hand caught in the sprocket wheel. A model of the machine was put in evidence and is before us. The machine consisted of a feed table about 2 1/2 feet above the floor, in which were live rollers, at the front end of which a dead roller was located, and at the rear end of which was a horizontal band saw. A heavy press roll was situate over the table just in front of the saw, which was set into a movable frame; the press roll working up and down to accommodate the thickness of the slabs which were being fed to the saw. This press roll was caused to revolve by means of sprocket wheels and chain; one sprocket being on the press roll and the other located at the front end of the machine. The power came directly from a small shaft which was held between two upright posts located at the extreme front and on either side of the feed table. The shaft was set in boxes placed at the end of the framework which held the press roll. The front sprocket wheel, being the one on which plaintiff was injured, was placed at the left side of the machine directly above the dead roller and at the front end of the feed table. The operator stood in front of the machine in a space about 2 1/2 feet between the feed table and a set of rollers on which material was brought to the resaw. At the time of the injury the plaintiff was feeding a slab to the resaw and had his right hand below and his left on the top of the slab, and was pulling the slab toward the machine; the slab came rather fast, with a jerk, and caught his hand between the sprocket wheel and slab. He had gloves on, and the glove caught first between the slab and sprocket wheel, and his hand was pulled in.

1. Error is assigned on the admission of the evidence of one T. A. Walby as an expert witness on the question of the practicability of guarding the sprocket wheel, and it is claimed that the witness had not shown himself qualified to testify. The evidence shows that Walby was a factory inspector, and had had quite large experience in examination of similar machinery with a view of determining its safety, and testified that he had seen similar machinery in factories guarded, and that such machinery could be guarded, and that he had ordered it guarded in other factories. His knowledge was based upon actual experience in the inspection of sprocket wheels and shafting similar to those in question in factories in northwestern Wisconsin. He was fully qualified to testify as an expert; therefore no error was committed in admitting his evidence. Kath v. Wisconsin C. R. Co., 121 Wis. 503, 99 N. W. 217;Bucher v. Wisconsin C. R. Co., 139 Wis. 597, 120 N. W. 518;Miske et al. v. Thom, 128 N. W. 858.

2. It is claimed that the plaintiff was not engaged in the line of his duty when...