Sladky v. Marinette Lumber Co.

• Decision Date: 21 June 1900
• Parties: SLADKY v. MARINETTE LUMBER CO.
• Court: Wisconsin Supreme Court

107 Wis. 250

83 N.W. 514

SLADKY

v.MARINETTE LUMBER CO.

Supreme Court of Wisconsin.

June 21, 1900.

Appeal from circuit court, Winnebago county; George W. Burnell, Judge.

Action by George Sladky against the Marinette Lumber Company. From a judgment in favor of plaintiff, defendant appeals. Reversed.Greene, Vroman, Fairchild, North & Parker, for appellant.

John Wattawa and G. G. Sedgwick, for respondent.

CASSODAY, C. J.

This action was commenced May 18, 1897, to recover damages for personal injuries sustained by the plaintiff, while in the employ of the defendant, April 28, 1896, rolling logs from the trough onto the iron skids, and down such skids to the saw carriage when in front of the saw. Issue being joined and trial had, the jury returned a special verdict to the effect (1) that the defendant was guilty of negligence in allowing the plaintiff to work upon the log deck; (2) that such negligence was the proximate cause of the plaintiff's injury; (3) that the plaintiff was not guilty of negligence which contributed proximately to the injury; (4) that log decks with appliances substantially the same as the defendant's were not in common use; (5) that the defendant's log deck was not of approved construction for use in such mills; (6) that the defendant's log deck was not reasonably safe for an unskilled workman using ordinary care and prudence himself; (7) that the plaintiff did not tell defendant's agent at the time of his employment, or before his injury, that he had done such work before; (8) that the log which caused the plaintiff's injury was not a smooth one, with the bark off, but a new one, with the bark on; (9) that the work of attending the log deck required that the person doing so should be skilled otherwise than in the use of a cant hook; (10) that ordinary care and prudence on the part of the defendant required other stops or barriers to be used on its log deck than such as were used; (11) that the defendant was bound to inform the plaintiff of the dangerous character of the work; (12) that the plaintiff was entitled to recover as damages $5,000. The fourth question so submitted to the jury, and their answer thereto, read as follows: “Question 4. Were log decks with appliances substantially the same as defendant's in common use? Answer. No.” The court corrected such finding by “striking out the answer, ‘No,’ to such question, as against the uncontradicted evidence in the case.” Otherwise, the court refused the motion of the defendant to correct the verdict or grant a new trial. Upon such verdict so amended by the court, judgment for the plaintiff was ordered for the amount stated, with costs, and from the judgment so entered accordingly the defendant brings this appeal.

The log deck mentioned in the special verdict is described by counsel for the plaintiff substantially as follows: In the defendant's sawmill there was a large double deck, with a circular saw on one side and a band saw on the other side. The logs were drawn by an endless chain from the water, up and along a trough, into the mill, to a point between and opposite the log deck on the side of the band saw, as well as the log deck on the side of the circular saw, where the plaintiff worked. The logs were thrown out of the trough onto such decks by an eccentric operated by steam, after being brought into the mill by the endless chain. The deck on the side of the circular saw was composed of a heavy plank floor, running on a level in a direction parallel with the trough where the logs came up, and parallel with the carriage way along which the carriage runs which carries the logs to the saw. Such log deck declined or slanted down from the trough to the carriage way, which was 13 feet in length at the point nearest the saw and sawyer, and was divided into three slants, of varying grades or declines. The first 2 feet and 7 3/4 inches from the trough there was a drop of 5 inches (the defendant's witness testified, 7 3/4 inches). The second decline was 8 feet 6 inches long, with a drop of 7 inches as shown by the plaintiff's witness, and 5 1/4 inches as shown by the defendant's witness. There was a space of 21 or 22 inches near the carriage way which was comparatively level, having a slight decline back from the carriage way towards the trough of one-eighth of an inch (defendant's witness testified, about 1 inch). There were three skids on the deck running from the log trough to the carriage way, raised about 6 inches above the platform of the deck. The two nearest the saw and sawyer were made of T rails (railroad iron) bent to correspond to the several slants of the deck, and were round and smooth on the top. The one nearest the sawyer was 3 feet 10 inches from the bumper, and the other was 8 feet and 11 inches further from the bumper. The third skid was of wood, with strap iron on top, and that also conformed in shape to the slant of the deck, and was 6 feet and 3 inches still further from the bumper. There was a square hole through the deck floor between the two railroad iron skids, about 3 feet square, for the bark to fall or be put through. There was a steam “nigger” located between the two railroad iron skids, used to put the logs from the skids onto the saw carriage, and of great power and rapidity of action, and which was also used to turn the logs on the carriage when necessary, and was under the control of and operated by the sawyer. The nigger operated in a slot or opening in the deck from below, running from the carriage way back 3 or 4 feet towards the trough. When in operation it was lowered below the deck, and the top end carried back 3 or 4 feet from the carriage, to a point behind the log sought to be put on the carriage, and it was then raised up and pressed forward by steam power towards the carriage, and so forced the log onto the carriage. There were no other stops of any kind on defendant's log deck to prevent the logs, when thrown by the eccentric from the log trough onto the deck, from rolling or sliding clear down to or upon the carriage way except the depressions mentioned, and the nigger, when it happened to be up and in use, but it was not used for stopping the logs, its use being only for putting them on the carriage and turning them afterwards. To enable the deck man to handle the logs or to keep control of them, it was usual to allow a few logs to remain on the skids, so that the logs from the trough, when thrown by the eccentric, would crowd against them, and be stopped and straightened preparatory to being put down by the deck hand to a place on the skids where the nigger could reach them and place them on the carriage. Only the smaller logs were run over the deck on the side of the circular saw. The logs sawed during the day and a half while the plaintiff worked in the mill were from 3 to 16 inches in diameter. Some of the logs were old, and some were new. The old logs had lost their bark, considerably, and were smooth. During the day and a half the plaintiff worked there, he handled 1,850 logs, or about 130 logs per hour. The year before there had been little spikes of iron in the skid next to the sawyer, about 2 inches high, to prevent logs from sliding onto the carriage way. After the accident there were notches cut in the iron skid next to the sawyer for the same purpose (to prevent the logs from slipping). A man was necessarily employed on the log deck to stop the logs from coming down too far and too fast, and to straighten them and place one at a time down near enough to the carriage way, so that the nigger could reach it and put it on the carriage. The proper place to put the log was at the slight turn or change of decline of the skid back towards the trough about 2 feet from the carriage, called by some witnesses the “depression,” and denominated by the defendant's counsel as the “saddle.” The proper time to place the log in position was when the carriage came back to that place for the log, so that there would be no delay in getting it with the nigger. The proper place for the deck man to stand and do his work was at the end of the log furthest from the sawyer. In describing the accident the plaintiff's counsel states, in effect, that after working a day and a half, and handling 1,850 logs, the plaintiff undertook to handle a small, smooth, slippery log, standing at the end furthest from the sawyer, and was trying to get it down in proper time to be put upon the carriage; that the end of the log opposite the plaintiff, or nearest the saw, slipped over onto the carriage way; that the carriage, as it came back from the saw, caught the log and threw it against the plaintiff, and injured his leg so as to make amputation necessary; that the plaintiff saw the carriage coming as the log was sliding over into the carriage way, and tried to stop it, but failed.

The complaint, among other things, alleges, in effect, that the log the plaintiff was attempting to handle at the time of the injury was without bark, and the first one in that condition which he had occasion to move from the log deck to the lower end of the skids; that the plaintiff did not know, and was not informed or warned in advance, that logs without bark had a tendency to slide in the manner described, nor the resulting danger. The general denial in the answer put such allegations in issue. As indicated, the jury determined that issue in favor of the defendant, and found (8) that the log which caused the plaintiff's injury was not a smooth one, with the bark off, but a new one, with the bark on. The only breaches of duty or negligence of the defendant alleged in the complaint were the failure of the defendant to furnish a reasonably safe place in which the plaintiff was required to do his work, in that such skids were “unprovided with any stops or barriers to prevent logs from rolling or slipping too far while the carriage was in motion, whereas each skid should have had in its upper edge or surface, at and near the...