Sharon v. Winnebago Furniture Mfg. Co.

• Decision Date: 11 January 1910
• Citation: 124 N.W. 299,141 Wis. 185
• Parties: SHARON v. WINNEBAGO FURNITURE MFG. CO.
• Court: Wisconsin Supreme Court

141 Wis. 185

124 N.W. 299

SHARON

v.WINNEBAGO FURNITURE MFG. CO.

Supreme Court of Wisconsin.

Jan. 11, 1910.

Appeal from Circuit Court, Fond du Lac County; Chester A. Fowler, Judge.

Action by William Sharon, by his guardian ad litem, Ole Sharon, against the Winnebago Furniture Manufacturing Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

This action was brought by an infant under 16 years of age through his guardian to recover for personal injuries. The complaint alleges that the plaintiff was under 16 years of age, but had a written permit from the county judge pursuant to section 1, c. 349, p. 561, Laws 1903, and that on the 4th day of November, 1907, plaintiff was directed and permitted to operate a rip saw contrary to the laws of the state; that the machine had negligently been allowed to become unsafe and out of order, in that the gauge was defectively fastened and loose, so that it moved and swerved sideways, thereby not holding the lumber securely; and that the machine was without any split guard or device to prevent the teeth of the saw from catching pieces of lumber while being sawed, and that defendant negligently failed to warn or instruct plaintiff of the dangers of operating the machine. At the close of the plaintiff's evidence, defendant moved for a nonsuit, and at the close of all the evidence moved for a directed verdict, which motions were denied. Defendant requested that the court submit as part of the special verdict the following question: “Was the injury to plaintiff one the cause of which the jury is unable to determine from the credible evidence?” which request was denied. The jury returned the following verdict:

“(1) Was the gauge of the saw table at which plaintiff was injured loose and insecure at the time of the injury to such an extent as to swerve sidewise, and thereby fail to keep panels of the size at the time being sawed in proper position while being run through the machine? Answer: Yes.

(2) If to the above question you answer ‘Yes,’ then did the defendant use ordinary care in permitting the gauge to be at the time in the condition found? Answer: No.

(3) Did the plaintiff by pushing downward and towards his right with the fingers of both hands on the panel he was pushing at the time he was injured, and when said panel was ripped nearly through, cause the gauge to swerve so as to ‘pinch’ or bind said panel between the gauge and the saw to such an extent as to produce the injury complained of? Answer: Yes.

(4) Did the defendant's foreman give to the plaintiff sufficient instructions as to how to run the panels through the saw at or before the time of the injury? Answer: No.

(5) If to the above question you answer ‘No,’ then did the defendant's foreman use ordinary care in not instructing him more fully before setting him at said work? Answer: No.

(6) Did the defendant's foreman use ordinary care in setting the plaintiff at work at the saw on which he was injured in view of his age? Answer: No.

(7) If to questions No. 2, 5, or 6 you answer ‘No,’ then was the want of ordinary care thus found the proximate cause of the plaintiff's injury? Answer: Yes.

(8) If to the above question you answer ‘Yes,’ then which was the proximate cause of the injury? (a) The looseness of the gauge, X. (b) Or the failure to give sufficient instructions. (c) Or setting a boy of his age at work at the saw.

(9) Was there any want of ordinary care on plaintiff's part that contributed to produce his injury? Answer: No.

(10) What sum will compensate the plaintiff for the injury sustained? Answer: $750.”

The defendant made the usual motions for judgment and to change the answers to the questions in the special verdict and for judgment notwithstanding the verdict and to set the verdict aside and for a new trial, which motions were denied, except that the court changed the answer to the third question of the special verdict from “Yes” to “No,” and ordered judgment for the plaintiff upon the verdict as amended. Judgment was entered accordingly, from which this appeal was taken.

Doe & Ballhorn, for appellant.

Husting & Husting (Lamoreux & Husting, of counsel), for respondent.

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

Several errors are assigned, which in the view we take of the case need not be treated. It is without dispute that the injured boy was under the age of 16 years, was employed by the defendant to work at the circular saw in question, was injured by the saw while at work, and was not guilty of contributory negligence. Subdivision 2, § 1728a, c. 523, p. 405, Laws 1907, provides: “No child under the age of sixteen years shall be employed in adjusting any belt or in oiling or assisting in oiling, wiping or cleaning any machinery when the same is in motion or in operating or assisting in operating any circular or band saw, woodshaper, wood-joinder, sandpaper or wood-polishing machine * * * or in any other employment dangerous to life or limb.” Section 1728h, Id., provides a fine and imprisonment for violation of the act. The prohibition under this subdivision is absolute, and does not suffer the work to be done under permit from the commissioner of labor or other officer as is provided in cases of other employment specified in subdivision 1 of the same section. The question, therefore, arises whether upon the established facts the defendant was guilty of negligence as matter of law. We think the case of Klatt v. Foster L. Co., 97 Wis. 641, 73 N. W. 563, is decisive upon this point. In that case it was held that, where a statute imposes a duty upon a class of persons to guard the personal safety of others, a...