Stork v. Charles Stolper Cooperage Co.

• Decision Date: 23 February 1906
• Citation: 127 Wis. 318,106 N.W. 841
• Parties: STORK v. CHARLES STOLPER COOPERAGE CO.
• Court: Wisconsin Supreme Court

127 Wis. 318

106 N.W. 841

STORK

v.CHARLES STOLPER COOPERAGE CO.

Supreme Court of Wisconsin.

Feb. 23, 1906.

Appeal from Circuit Court, Milwaukee County; Lawrence W. Halsey, Judge.

Action by John Stork against the Charles Stolper Cooperage Company. From a judgment for plaintiff, defendant appeals. Reversed.

On January 25, 1900, the plaintiff was employed in defendant's cooperage factory upon a certain machine. He was then 19 years of age, considerably experienced with machinery, and had worked about six months in defendant's factory, and on numerous occasions with the machine in question. A transverse shaft ran across the machine, having at one end an exposed gearing, and, about four inches from the gearing, passed through a box, or journal, the top of which was fastened down with bolts each having a nut on top. It often became necessary, by reason of the heating of this box, to loosen such nuts, and plaintiff had done so a great many times, picking up for that purpose any one of several monkey wrenches which were about the shop, but none of which was specially supplied for that purpose. On the day in question this operation became necessary, and plaintiff went to a machine a few feet away and found a monkey wrench which, without looking at it to ascertain its condition, he fitted to the nut and pushed on the handle away from himself and toward the gearing. The wrench was claimed to be defective so that the jaws parted and it slipped off the bolt suddenly, and plaintiff's hand went into the gearing and was seriously mangled. There was some evidence from another employé that he saw the wrench used by the plaintiff; that he was familiar with it and had discovered a few minutes before that the thread of the screw which moved and held the jaws was so worn out that the jaws would part upon application of pressure; that about a week before he had discovered the existence of that defect in a less degree, and had called to it the attention of the foreman, whose business it was generally to look after and repair all inachinery and appliances in the shop. The jury, by special verdict, found: (1) That the wrench was defective. (2) That defendant's foreman had been notified thereof before the day of the accident. (3) That defendant ought, by the exercise of ordinary care, to have known of the defect. (4) That the plaintiff neither knew, nor by the exercise of ordinary care ought to have known, thereof. (5) “Was there any want of ordinary care on the part of the defendant which was the proximate cause of the plaintiff's injury?” Answer: “Yes.” (6) There was no want of ordinary care on the part of plaintiff which proximately contributed to the injury. And (7) damages. Defendant, having previously moved for nonsuit and for direction of a verdict, after verdict moved to reverse the answers to questions 1, 2, 3, 4, 5, and 6, and for judgment in favor of the defendant; or, in the alternative, that the verdict be set aside and a new trial granted, which motions were overruled and judgment entered in favor of the plaintiff, from which the defendant appeals.Vilas, Vilas & Freeman, for appellant.

Fiebing & Killilea, (C. H. Van Alstine, of counsel), for respondent.

DODGE, J. (after stating the facts).

The first assignment of error involves, primarily, the assertion that there was no credible evidence upon which the jury might have reached their conclusions expressed in the special verdict. With this we cannot agree. While on many of these questions there was substantial conflict, and perhaps what we might deem a preponderance of evidence to the contrary, there was at least some evidence in support of each of the answers, except perhaps the third, which, however, is immaterial in presence of the finding of defendant's actual knowledge of the defect in the wrench.

2. It is strenuously urged that a monkey wrench falls within the category of common and simple tools, as to which, it is asserted by the appellant, the master is not bound by the ordinary rule that he must supply his employé with suitable and safe appliances. It may be conceded that, generally speaking, a monkey wrench is in such category, and the rule of law is well established in this state and elsewhere that in case of such simple tools no liability rests on the master for the ordinary perils resulting from their use, nor for those latent and usual defects or weaknesses which, by reason of the common, usual character of the appliance, are presumed to be known to all men alike. This exemption from liability is, we believe, in all cases based upon the condition that the defect and peril are such that no superiority of knowledge in the master over the employé exists or can be presumed. Corcoran v. Mil. Gas L. Co., 81 Wis. 191, 51 N. W. 328;Marsh v. Chickering, 101 N. Y. 396, 5 N. E. 56;Cahill v. Hilton, 106 N. Y. 518, 13 N. E. 339;Olson v. Doherty Lumber Co., 102 Wis. 271, 78 N. W. 572;Borden v. Daisy Roller Mills Co., 98 Wis. 407, 74 N. W. 91, 67 Am. St. Rep. 816,Garnett v. Phœnix Bridge Co. (C. C.) 98 Fed. 192;L. E. & St. Louis C. R. Co. v. Allen, 47 Ill. App. 465;Georgia R. & B. Co. v. Nelms, 83 Ga. 70, 9 S. E. 1049, 20 Am. St. Rep....