O'Sullivan v. J. S. Stearns Lumber Co.

• Decision Date: 07 October 1913
• Citation: 154 Wis. 467,143 N.W. 160
• Parties: O'SULLIVAN v. J. S. STEARNS LUMBER CO.
• Court: Wisconsin Supreme Court

154 Wis. 467

143 N.W. 160

O'SULLIVAN

v.J. S. STEARNS LUMBER CO.

Supreme Court of Wisconsin.

Oct. 7, 1913.

Appeal from Circuit Court, Bayfield County; G. N. Risjord, Judge.

Action by John O'Sullivan, administrator of the estate of John Pikus, deceased, against the J. S. Stearns Lumber Company to recover damages for the negligent killing of deceased. From a judgment for plaintiff, defendant appeals. Affirmed.A. W. Macleod, of Washburn, for appellant.

John Walsh, of Washburn, and W. P. Crawford, of Superior, for respondent.

TIMLIN, J.

[1] Upon a complaint charging, among other grounds of negligence, the failure to provide a competent employé to perform the work of keeping an edging machine clear of refuse and the employment of one Hilmer Johnson of immature years and judgment and lacking in skill and experience for that purpose, the jury after trial and hearing, by special verdict, found Hilmer Johnson incompetent, which incompetency was the proximate cause of the injury in question, and that the defendant had knowledge of such incompetency at the time of the injury. The injury occurred on June 20, 1911, in consequence of a board flying back over the saws and killing the edgerman John Pikus, plaintiff's decedent. Hilmer Johnson examined as a witness on the part of the plaintiff testified that at the time of trial he was 17 years old and was 16 when the accident happened and was 14 when he left school three years before the time of trial; that he was 14 on the 8th day of March, 1910. Hilmer's mother testified that he was born August 8, 1895, and was 17 years old on August 8, 1912. This would leave him under 16 at the time of the injury. No question in the special verdict expressly called for a finding of the age of Hilmer. Instructions relative to question 3, asking whether Hilmer was a reasonably competent employé, advised the jury that in making an answer they should consider the kind of work he was employed to perform, his age and experience, etc.

[2] Section 1728a, subd. 2, Wis. Stats., forbids the employment of children under the age of 16 years “in operating or assisting in operating or taking material from any circularor band saw or any crosscut saw or slasher or other cutting or pressing machine from which material is taken from behind.” It is argued that this does not forbid employment upon an edger. The latter machine consists of a shaft on which are several revolving circular saws with feed rollers in front and rollers behind said saws. It is argued that the words “any circular or band saw” refer solely to the large circular saw or band saw in common use for cutting logs or cants into lumber in the first instance.

Under the well-known rule of construction ejusdem generis, other cutting machine from which material is taken from behind includes other circular or band saws than those specifically mentioned, and it serves to extend the scope of the words “circular saw” as first used to other implements of the same genus or family. Lusk v. Stoughton State Bank, 135 Wis. 311, 115 N. W. 813;Wicker v. Comstock, 52 Wis. 315, 9 N. W. 25; 36 Cyc. 119. Hence such employment was prohibited and illegal if the said fellow servant of decedent was under the age of 16 years.

The testimony of Joseph Wyczinski tended to show that Hilmer was often away from his work while the edger was running and sometimes in other parts of the mill away from the edger table, running and playing with other boys or men in the mill, also throwing bark and refuse that fell from the edger. The court improperly refused permission to cross-examine this witness, but no error is assigned on this ruling. There is testimony which goes to the question of the competency, and also to the question of notice to the employer, which was given by Hilmer on cross-examination as a witness for the defendant. This is to the effect that once in a...