VoRbrich v. Geuder & Paeschke Manuf'g Co.

• Decision Date: 21 May 1897
• Citation: 71 N.W. 434,96 Wis. 277
• Court: Wisconsin Supreme Court
• Parties: VORBRICH v. GEUDER & PAESCHKE MANUF'G CO.

96 Wis. 277

71 N.W. 434

VORBRICH

v.GEUDER & PAESCHKE MANUF'G CO.

Supreme Court of Wisconsin.

May 21, 1897.

Appeal from circuit court, Milwaukee county; D. H. Johnson, Judge.

Action by August Vorbrich, Jr., a minor, by O. J. Fiebing, his guardian ad litem, against the Geuder & Paeschke Manufacturing Company. There was judgment for plaintiff on a special verdict, and defendant appeals. Reversed.Winkler, Flanders, Smith, Bottum & Vilas, for appellant.

Fiebing & Killilea and C. H. Van Alstine, for respondent.

CASSODAY, C. J.

It appears from the record: That the plaintiff was employed by the defendant to work in its factory about the 1st of September, 1893. That prior to that time he had been engaged in working upon similar, but smaller, machines. That upon going to work for the defendant he worked upon two or three smaller machines before working upon the machine by which he was injured, which was No. 2. That that machine consisted of a die, or punch, which was caused to be set in motion by the operator pressing his foot upon the treadle; the result of which was to engage by means of a clutch a wheel upon the main shaft, and which was in constant motion. That by releasing the pedal the machine would make but one revolution, causing the die or punch to make one impression. That, if the pressure of the foot was maintained, the machine would continue to revolve until the foot was removed. That in operating the machine only one revolution at a time was desirable. That the machine was so constructed that if the operator pressed his foot upon the pedal, and at once released it, one revolution would result. That October 30, 1893, he worked on that machine all day. That shortly after he commenced to work for the defendant the foreman told him that, if there was anything out of order or wrong about the machine, to see the die setter about it. That October 31, 1893, while he was working on machine No. 2, he told the die setter that his punch dropped the day before. That the die setter said to him: “Go on; attend to your own business. The machine is all right.” That he then went to work at it again, and was hurt about 4 o'clock in the afternoon. That at the time he was hurt he was putting the tin in the machine, and when the punch came down, and he was hurt, the tin was in the machine,--not in its right shape, though,--that is, over half of it was in, and when it cut his fingers it pulled the other half in. That three of his fingers were taken off. That when he got his fingers out of the press they were smashed all up. That the doctor cut the pieces off, and the bones were half smashed, and he had to saw the bones off too. That at the time the punch came down and cut his fingers off his foot was not on the treadle. That to operate these smaller machines he put his foot on the treadle. That it was necessary to apply more weight upon the treadle to cause the No. 2 machine to work than upon the smaller machine, which went still easier. That he only had to just touch the treadle, when the smaller one would come down. That upon this one he had to step pretty hard. That at the time of such injury the plaintiff lacked about 6 weeks of being 15 years old. That November 29, 1893, he commenced this action by his guardian to recover damages by reason of the defendant's alleged negligence. That, issue being joined, and a trial had, at the close thereof the jury returned a special verdict to the effect that at the time of the plaintiff's injury the said machinery was so out of repair as to render said stamp or punch liable to descend without pressure upon the treadle. That such want of repair was the proximate cause of the plaintiff's injury. That defendant had notice of such want of repair before the plaintiff's injury. That the defendant was guilty of a want of ordinary care, which was the proximate cause of the plaintiff's injury. That plaintiff, taking into account his age, experience, and capacity, was not guilty of any want of ordinary care which proximately caused or contributed to his injury. That the plaintiff is entitled to damages, which they assessed at $2,500. That thereupon judgment was ordered to be entered upon the verdict accordingly, and from the judgment so entered the defendant brings this appeal.

It is claimed that the defendant was negligent in that (1) it put the plaintiff at work upon the machine in question, when it knew, or in the exercise of ordinary care ought to have known, that it was so defective or out of repair as to render the die, stamp, or punch liable to descend without pressure upon the treadle; and (2) also in putting a boy of his age and experience to work upon such a machine, and without instructing him as to the risks and dangers incident to such employment. The first of these questions seems to be very important in the case, but was discussed very little at the bar, and less in the briefs. There is undoubtedly a class of cases where the facts are such that the mere proof of the accident creates a presumption of negligence. Byrne v. Boadle, 2 Hurl. & C. 722; Scott v. Dock Co., 3 Hurl. & C. 596; Briggs v. Oliver, 4 Hurl. & C. 403; Kearney v. Railway Co., L. R. 5 Q. B. 411; Id., L. R. 6 Q. B. 759; Mullen v. St. John, 57 N. Y. 567;McCarragher v. Rogers, 120 N. Y. 526, 24 N. E. 812;Volkmar v. Railroad Co., 134 N. Y. 418, 31 N. E. 870;Hogan v. Railway Co., 149 N. Y. 23, 43 N. E. 403; Lyons v. Rosenthal, 11 Hun, 46; Morton v. Railroad Co., 81 Mich. 423, 46 N. W. 111;Thomas v. Telegraph Co., 100 Mass. 156;Connors v. Manufacturing Co., 156 Mass. 163, 30 N. E. 559;Donahue v. Drown, 154 Mass. 21, 27 N. E. 675;Martineau v. Book Co., 166 Mass. 4, 43 N. E. 513;Dixon v. Pluns, 98 Cal. 384, 33 Pac. 268;Judson v. Powder Co., 107 Cal. 549, 40 Pac. 1020;Howser v. Railroad Co., 80 Md. 146, 30 Atl. 906. This court has repeatedly sanctioned the same principle. Spaulding v. Railway Co., 30 Wis. 110;Cummings v. Furnace Co., 60 Wis. 603, 18 N. W. 742, and 20 N. W. 665;Kurz & Huttenlocher Ice Co. v. Milwaukee & N. R. Co., 84 Wis. 171, 53 N. W. 850;Stacy v. Railroad Co., 85 Wis. 225, 54 N. W. 779. In such cases the accident is unusual under the circumstances. In most of these cases there was, in fact, present some specific defect, act, or omission as the basis of the alleged negligence, and the thing or machine was under the management or control of the defendant; but in some of them the machine unexpectedly started, with no one present or in control but the person who was injured. In some of the cases the defendant gave evidence of a careful inspection by competent experts, without discovering the defect; but such evidence was held to be insufficient to take the case from the jury. No one would claim, as a general rule, that the mere proof of an accident creates any presumption of negligence. There is a class of cases holding that, even where the facts are such as to create such presumption, yet that it is completely overcome, as a matter of law, by merely proving by competent experts that the machine or thing at the time was not defective, or out of repair, or that the conditions were such as to preclude negligence. Spaulding v. Railway Co., 30 Wis. 110;Id., 33 Wis. 582;Read v. Morse, 34 Wis. 315;Gibbons v. Railroad Co., 62 Wis. 546, 22 N. W. 533;Menominee River Sash & Door Co. v. Milwaukee & N. R. Co., 91 Wis. 447, 65 N. W. 176;Dingley v. Knitting Co., 134 N. Y. 552, 32 N. E. 35;Brymer v. Railroad Co., 90 Cal. 496, 27 Pac. 371;Duffy v. Upton, 113 Mass. 544;Ross v. Cordage Co., 164 Mass. 257, 41 N. E. 284. In this last case it was held that: “Where a person is injured by the sudden starting of a machine which he is cleaning, if there is no defect in the machine, and it does not differ from similar machines in use elsewhere, and is in the same condition as it was when he entered upon his employment, the mere fact that certain contrivances, if on the machine, might have prevented its starting, is not sufficient to show a breach of duty on the part of his employer.” Since we find both classes of cases in the same court, and sometimes in the same volume (Volkmar v. Railway Co., 134 N. Y. 418, 31 N. E. 870;Dingley v. Knitting Co., 134 N. Y. 552, 32 N. E. 35), it is manifest that the class to which the case at bar belongs must depend upon the particular facts involved. As the evidence may be different upon a new trial, we refrain from determining the question suggested upon this appeal.

2. Upon the question of the assumption of risk, counsel for the plaintiff suggested an instruction, whereupon the court ruled and stated in presence of the jury, and in part to them, that: “I have not instructed the jury upon that point, and I do not consider that it is a question proper to instruct the jury upon. It might be claimed in the case of a full-grown man--a man with all his faculties--that it was negligence on his part to continue in the employment after he had discovered the danger, but I think that in the case of a boy of this age, with his experience and his capacity, I ought not to submit that question to the jury. * * * In this case, this is a minor. He was not employed as an independent agent, but as a minor; and I do not think that it is competent to submit, even to the jury, the consideration of the question whether or not he accepted this risk by continuing in this employment. That question has not been submitted to you by the court, and the court declines to submit it. You will answer the questions which have been submitted by the court under the instructions I have given you, and not outside of them.” This ruling is contrary to numerous decisions of this court. We only cite two: Luebke v. Machine Works, 88 Wis. 442, 60 N. W. 711;Casey v. Railroad Co., 90 Wis. 113, 62 N. W. 624. In the first of these cases it was held that: “It is a question of fact for the jury whether a minor servant was of sufficient age, intelligence, discretion, and judgment to bring him within the operation of the rule...