Sherman v. Menomonee River Lumber Co.

• Decision Date: 20 May 1890
• Citation: 77 Wis. 14,45 N.W. 1079
• Parties: SHERMAN v. MENOMONEE RIVER LUMBER CO.
• Court: Wisconsin Supreme Court

77 Wis. 14

45 N.W. 1079

SHERMAN

v.MENOMONEE RIVER LUMBER CO.

Supreme Court of Wisconsin.

May 20, 1890.

Appeal from circuit court, Marinette county; GEORGE H. MEYERS, Judge.

This action is brought to recover damages by reason of personal injury sustained by the plaintiff, October 9, 1883, while in the employ of the defendant, in its saw-mill in Marinette, and while engaged in handing boards to another servant of the defendant, who was then engaged in feeding the edger in said saw-mill, by being suddenly struck by a board on his right thigh with such force as to crush and break the same, and make it necessary to amputate his right leg, which was done on that day. The complaint alleges two causes of action, and the first is to the effect that the defendant and its managing agents negligently provided and used an unsafe, defective, and insecure edger, and which defect consisted, among other things, in not being properly set up and held together,--that is to say, that the roller above the board, and which propelled the board against the saw, was so carelessly and negligently attached that it often became raised or thrown up by a small piece of bark or splinter coming from the board, so as to loosen its hold thereon, and allow it to be thrown back, when it struck the saw; that the lower roller was cracked and broken so that a heavy board would bend it down, and thus allow the board to be thrown back violently when struck by the saw. The second cause of action, as therein alleged, is to the effect that the defendant, well knowing of the plaintiff's youth and inexperience in all matters relating to sawmills, and the dangers therewith connected, negligently and carelessly set him at said work, which at all times, and under all circumstances, was extra hazardous and dangerous, without notifying or cautioning him of such danger, or showing him how to avoid the same. The answer admits the corporate existence of the defendant, such employment, and the receiving of the injury, but otherwise denies each and every allegation in the complaint.

At the close of the trial, the jury, under the charge of the court, returned a special verdict to the effect (1) that at the time and place complained of the plaintiff was at work for the defendant in the saw-mill, with another person in the employ of the defendant, running lumber through an edger machine propelled by steam-power,--such other person being in charge of, and feeding lumber to, the machine, and the plaintiff passing lumber to the feeder of the machine; (2) that at said time a board or plank that the feeder was passing through the edger was thrown back by the edger against the plaintiff, thereby causing the injury complained of; (3) that at the same time said edger was out of repair, so that it did not do its work properly and safely. The fourth question and answer were as follows: “If you answer ‘No’ to the last question, this question need not be answered, but, if you answer ‘Yes' to the last question, then answer this question: ‘Was the want of repair of the edger a cracked or broken roller or rollers, or rollers that were worn out of proper form by use?’ Answer. Yes.” The balance of the findings were to the effect (5) that the throwing of the board or plank back against the plaintiff by the edger was occasioned by the edger being out of repair as aforesaid; (6) that the board or plank complained of was not thrown back against the plaintiff by the edger through the carelessness or negligence of the man who fed the edger alone; (7) that the plaintiff had worked for the defendant six and one-half days when he was injured; (8) that the defendant hired the plaintiff to do the work of a common laborer; (9) that the foreman of the defendant ordered the plaintiff to pass lumber to the man who fed the edger; (9 1/2) that when the plaintiff was ordered to work at the edger the agents of the defendant in charge of the mill and the edger knew that the plaintiff was ignorant of such machinery, and the dangers to which those who work upon it were exposed; (10) that at the time complained of the plaintiff had not any information or knowledge of saw-mills or edgers, or their operation, or of the dangers to which he was exposed while working at the edger, or how to avoid the injuries to which he was exposed; (11) that the plaintiff was about 20 years of age when he was injured; (12) that the plaintiff had worked at the edger, or in sight of it, one day before he was injured; (13) that the agents of the defendant in charge of the mill knew that the edger was liable on occasions to throw back with great force planks and boards that were passing through it; (14) that neither the defendant nor its agents in charge of the mill and edger in any manner informed the plaintiff that the edger was liable to or could throw back boards or planks that were passing through it, how he could avoid injuries on such occasions, or how he could know when there was danger that planks or boards would be thrown back by the edger; (15) that if the plaintiff had known, when a board or plank stopped in the edger, and the feeder was trying to loosen and start the plank, that there was danger that the board or plank would be thrown backward with force by the edger, the plaintiff could have got out of the way, and escaped injury; (16) that the plaintiff was not guilty of any ordinary negligence that contributed to the happening of the injury to him; (17) that, if the plaintiff has judgment, he should receive as damages $5,000. Subsequently, the court having ordered judgment upon said special verdict in favor of the plaintiff and against the defendant, the same was entered accordingly; and from the judgment so entered the defendant brings this appeal.Fairchild & Fairchild, (F. C. Winkler, of counsel,) for appellant.

Huntington & Cady, for respondent.

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

The complaint alleges two causes of action. The first consists in negligently providing and using an unsafe, defective, and insecure edger, and stating wherein the same was unsafe, defective, and insecure. In answer to the third question the jury found, in effect, that the edger was at the time out of repair, so that it did not do its work properly and safely. By the fourth question submitted the jury were required to find whether such “want of repair” consisted of “a cracked or broken feed roller or rollers, or rollers that were worn out of proper form by use.” To the alternative thus presented the jury simply answered, “Yes.” The answer to the fifth question is to the effect that such want of repair caused the board or plank to be thrown back against the plaintiff. From the answer to the fourth question, it is impossible to tell whether the jury found such roller or rollers cracked or broken, or merely worn out of proper form by use. Carroll v. Bohan, 43 Wis. 218;Jewell v. Railway Co., 54 Wis. 617, 12 N. W. Rep. 83;Murray v. Abbot, 61 Wis. 198, 20 N. W. Rep. 910. It follows that the question submitted was defective, and the answer indefinite and uncertain. Besides, it is strenuously claimed...