Sherman v. Menomonee River Lumber Co.

• Decision Date: 18 September 1888
• Citation: 72 Wis. 122,39 N.W. 365
• Parties: SHERMAN v. MENOMONEE RIVER LUMBER CO.
• Court: Wisconsin Supreme Court

72 Wis. 122

39 N.W. 365

SHERMAN

v.MENOMONEE RIVER LUMBER CO.

Supreme Court of Wisconsin.

September 18, 1888.

Appeal from circuit court, Marinette county.

Action by John Sherman against the Menomonee River Lumber Company, for personal injuries alleged to have caused by defendant's negligence. The court directed a verdict for defendant, and plaintiff appeals.Huntington & Cady, for appellant.

Fairchild & Fairchild, for respondent.

TAYLOR, J.

The appellant was an employe of the respondent, working for the respondent in its mill and yard, and in and about its mill; and while so working in its mill, and near a machine called an “edger,” he was injured by a plank 16 feet long and 2 inches thick, which was thrown backward from the edger. His place of work was behind, and a little to one side, of the edger. The plank, which was thrown backwark from the edger, struck the appellant on his leg, and so injured it that it became necessary to amputate it. Immediately before the plank was thrown backward from the edger, the plank, in its progress through the saws, stopped, and would not pass through. In order to relieve the machine, it became necessary to remove the plank therefrom, and, in attempting to relieve the machine and remove the plank, the plank was thrown back with great violence, and struck the appellant. It was no part of the duty of the appellant to assist in relieving the machine, or in removing the plank, nor did he in any way assist in that work.

The plaintiff in the circuit court, and the appellant here, sought to recover upon two grounds: First. On the ground that the edger was out of repair at the time the accident happened; that its being out of repair rendered the machine unnecessarily dangerous to those using it, or working in its vicinity; and that such want of repair of the machine was the proximate cause of the injury to the plaintiff. Second. On the ground that he was employed to work in the mill-yard, and not in the mill; that the work in the mill, assisting at the edger, was a much more dangerous employment than working in the yard; that he was wholly unacquainted with the dangers incident to working in the mill, and especially in working near the edger; that he was directed, by some one having authority from the defendant, to leave his work in the yard, and assist at the edger; and that he was not warned by defendant, or any of its managers, agents, or employes, of the dangers incident to the work about the edger. Upon the trial in the court below the learned circuit judge, upon all the evidence, directed the jury to find a verdict for the defendant. The plaintiff and appellant duly excepted to the direction of the court, and, after verdict, moved for a new trial, which was overruled, and exception taken. From the judgment dismissing the plaintiff's complaint with costs, the plaintiff appealed to this court, and alleges that the circuit judge erred in holding that, upon the whole evidence, there was no question of fact which ought to have been submitted to the jury, and that, as a matter of law, the defendant was entitled to a verdict.

After a careful consideration of the evidence found in the record, we are of the opinion that the learned judge erred in holding-- First, that there was an entire lack of evidence tending to show that the edger was out of repair at the time the accident occurred; and, second, in holding that if there was some evidence tending to show such defect in the edger, still the plaintiff could not recover, because the evidence conclusively showed that such defect, if it existed, was not the proximate cause of the plaintiff's injury. We think the evidence in the case on the part of the plaintiff tends to show that the edger was out of repair at the time the accident happened; and the whole evidence tends strongly to show that, if it was out of repair, as claimed by the plaintiff, then it was a much more dangerous machine to work with than though it had been in perfect repair. If it was out of repair, as claimed by the plaintiff, then it is evident that the planks in passing through the machine would be much more likely to clog the machine, and stop in their progress through it; and all the evidence tends strongly to show that the greatest danger in the use of the machine was present when it was necessary to remove a plank which stopped in the machine; that at such times the danger arising from planks being thrown backward from the machine usually occurred, and that it was almost impossible that that danger could arise except when an attempt was made to remove a plank which choked and stopped in the machine. The learned circuit judge does not absolutely deny that there was any evidence tending to show that the machine was defective, nor that such defect tended to render its use more dangerous to those using it or working in its vicinity; but he takes the ground that, if it be admitted that the machine was defective, and that such defect caused the plank which did the injury to clog the machine, and therefore rendered it necessary for the persons in charge of it to perform the dangerous operation of removing the plank from the machine, still the plaintiff...