Wagner v. Plano Mfg. Co.

• Decision Date: 09 April 1901
• Citation: 85 N.W. 643,110 Wis. 48
• Parties: WAGNER v. PLANO MFG. CO.
• Court: Wisconsin Supreme Court

110 Wis. 48

85 N.W. 643

WAGNER

v.PLANO MFG. CO.

Supreme Court of Wisconsin.

April 9, 1901.

Appeal from circuit court, Waukesha county; James J. Dick, Judge.

Action by Louis Wagner, an infant, by his guardian ad litem, against the Plano Manufacturing Company and another. From a judgment in favor of defendants, plaintiff appeals. Affirmed.

This is an action to recover for personal injuries. The facts appearing upon the trial were substantially as follows: In June, 1898, the plaintiff, who was a boy a little less than 15 years of age, of ordinary health and intelligence, was living at Waukesha, with Valentine Imig, who was his stepfather, and is his guardian ad litem in this action. Imig was an agent for the defendant, the Plano Manufacturing Company, and in 1897 had sold a binder made by said company to a farmer in the vicinity, who was unable to pay for the same, and in 1898 the machine was taken back from the farmer by another agent of the defendant, who thereupon sold it to Imig, with an agreement that a new pair of trucks should be furnished with the machine. The machine was upon a farm near Waukesha, and the trucks were afterwards procured, and an attempt was made by Imig to place them under the binder, but it appears that they would not fit. Thereupon Imig notified the general agent of the defendant at Fond du Lac of the fact that the trucks would not fit; whereupon the agent sent an expert, one Diebler, to Waukesha to fit the trucks to the machine. Diebler called on Imig, and learned what the difficulty was, and Imig sent the plaintiff with a horse and buggy to take Diebler out to the farm and show him the binder and the trucks, in order that Diebler might fit them together. On arriving at the farm where the binder and trucks were, there being no other man to assist Diebler, he required the plaintiff to assist him, and the plaintiff consented to do so. In this operation, Diebler first directed the boy to get a block to prop up the binder, which he did, and, the first block not being long enough, he procured another. Diebler thereupon lifted up the binder, and told the plaintiff how to place the block so as to prop it up, and the boy placed the block under the binder, but Diebler said it was not quite solid enough, so Diebler lifted up the binder again, and the plaintiff placed the block in a better position, and then Diebler said, “It's all right,” and then took the tongue out of the machine, and threw it on the ground, and told the boy to hold onto the trucks. In doing this, the boy had to go in front of the binder, and sat down upon the ground. While so holding the trucks they slipped off in some manner, and Diebler came back and put the machine on again, and said to the boy, “Hold them good,” and turned away...