Walker v. Simmons Mfg. Co.

• Decision Date: 30 April 1907
• Citation: 131 Wis. 542,111 N.W. 694
• Parties: WALKER v. SIMMONS MFG. CO.
• Court: Wisconsin Supreme Court

131 Wis. 542

111 N.W. 694

WALKER

v.SIMMONS MFG. CO.

Supreme Court of Wisconsin.

April 30, 1907.

Appeal from Circuit Court, Kenosha County; J. J. Fruit, Judge.

Action by Samuel Walker against the Simmons Manufacturing Company. From a judgment for plaintiff, defendant appeals. Affirmed.

This action was brought to recover for personal injuries sustained by plaintiff on the 22d day of March, 1905, while engaged in defendant's factory at Kenosha, Wis. The complaint charges that the plaintiff was in the employ of the defendant, and engaged in the work of receiving and piling bed springs in the storeroom of defendant's factory; that it was the duty of the defendant to provide plaintiff with a safe place to perform his work; that defendant failed in this regard, in that it negligently permitted a defective, worn, and improper set screw to be used, which set screw fastened an iron collar around a revolving shaft, and neglected to cover the shaft, set screw, and collar with safe guards to prevent injury to plaintiff, as provided by section 1636j, St. 1898, and acts amendatory thereof, and negligently permitted the set screw to become loose and project beyond the outer surface of the collar three-fourths of an inch, and negligently and without warning to plaintiff permitted the collar and set screw to slide along and upon the shaft several feet away from the arm where the collar was attached to hold the arm firmly, and negligently caused the room and premises where plaintiff was performing his duty to be insufficiently and improperly lighted. The complaint further alleges that on the day named, and while plaintiff was in the performance of his duty piling bed springs under and near the shaft to which said set screw and collar were attached, and without any warning to the plaintiff, or negligence on his part, one of the wire springs caught on the projecting set screw, and plaintiff's hand was caught between the bottom of the bed spring and the shaft, which caused the injury. The answer denies the material allegations of the complaint, and further avers that the presence, location, and nature of the set screw and collar were open, obvious, and well known to the plaintiff, and that he assumed the risk and was guilty of contributory negligence.

At the close of the testimony defendant moved for a directed verdict, which was denied. The jury returned the following verdict: “Question 1. On March 22, 1905, at the time of the accident to the plaintiff, was the relation existing between the plaintiff and the defendant that of employer and employé? Answer: Yes. Question 2. At the time of receiving the injuries of which he complains was the plaintiff engaged in work at a place in which he was authorized by the defendant to engage in the performance of such work? Answer: Yes. Question 3. If you answer the second question ‘Yes,’ then was such place so furnished by the defendant a reasonably safe place in which to do his work? Answer: No. Question 4. If you answer the third question ‘No’, then was such failure to furnish a reasonably safe place the proximate cause of the plaintiff's injury? Answer: Yes. Question 5. Was there any want of ordinary care on the part of the plaintiff which contributed to his injury? Answer: No. Question 6. If the court shall finally determine the plaintiff is entitled to recover, at what sum do you assess his damages? Answer: $5,000.” Motions were made for judgment in favor of the defendant notwithstanding the verdict, and also that the verdict be set aside and a new trial granted.

Judgment was rendered in favor of plaintiff on the verdict, from which this appeal was taken.

Vilas, Vilas & Freeman, for appellant.

Ernest A. Kehr, N. L. Baker, and W. J. Zimmers, for respondent.

KERWIN, J. (after stating the facts).

Several errors are assigned by appellant, and, so far as necessary to the disposition of this appeal, will be treated in their order.

1. It is insisted that a verdict should have been directed for defendant on the ground that the evidence established conclusively that the defendant was not guilty of negligence, and that plaintiff was guilty of contributory negligence and assumed the risk. In this behalf, it is insisted that plaintiff had been at work on the premises for several years and was familiar with them and aware of the danger; that he was not at the time of the injury within the territory assigned to him, but was in a place unauthorized by defendant; that he was an independent contractor, and hence the relation of master and servant did not exist; that the set screw upon which plaintiff was injured was nine feet above the floor, and not in any way dangerous to employés, and hence defendant was under no obligation to guard it. It appears from the evidence that plaintiff had been employed by defendant some four years before his injury, but his employment was such as not to bring him in close contact with the machinery in the factory, or familiarize him with it. His first employment was at the knotter, and at such other work as was required of him until the end of the year, 1902, after which he had charge of piling of the wire bed springs under the supervision of the superintendent of the spring department. In this connection his duties were to receive wire beds or bed springs which came from another department of the factory, and prepare them for shipment by pressing them together with a press, and piling them up in a storeroom assigned by defendant for that purpose. The shipping room in which plaintiff was injured was 152 feet north and south, and 171 feet east and west. There was a line shaft running north and south and attached to posts by hangers. This shaft was 93 feet from the west end of the building and 35 feet to the nearest wall east. It was nine feet above the floor, and ran in a hanger, which was 8 or 9 inches, towards the west from a post to which it was bolted, and was about 3 feet from the ceiling. At the time of the injury the shaft was making about 285 revolutions per minute. The entire floor on which plaintiff was at work at the time of the injury was used for storing the finished product, springs, wood frames, wire mattresses, and all wire spring beds. At the place of injury the shafting ran in a bearing or box, and a collar and set screw were originally set and belonged on the south side of the box or hanger tight against the box. This collar and set screw were put in place at the time the shaft was hung. There was a partition along the line of posts immediately east of the shafting, east of which was the territory which was ordinarily occupied by the plaintiff for the performance of his work; but at the time of the injury he was not within this allotted territory, but was piling spring mattresses on the west side of the partition and under the shaft in question, and, while lifting a mattress to place it on top of others under or beside the shaft, it was caught by the set screw, and his hand, together with the mattress, drawn around the shafting, in consequence of which he sustained the injuries complained of. There is evidence tending to show that at the time of the injury the set screw extended some three-fourths of an inch beyond the collar, and that the collar and set screw had moved some two feet or more away from the bearing or box where originally placed, but just how, or when, so removed, does not appear. There is also evidence that, while plaintiff ordinarily used the territory allotted to him, he also used the territory under the shaft in question, where he received the injury, with the permission of the defendant's superintendent, and that he was not familiar with the set screw, and did not know that it was located so as to be dangerous; that at the time of the injury the territory allotted to him was well filled, and he was forced to do his work at the place where he received the injury. It also appears from the evidence that it was difficult to see the set screw when the shaft was in motion. We think it very clear that there is ample evidence to show that plaintiff was at the time of the injury occupying the space in question under the revolving shaft and set screw with the assent of the defendant, and without knowledge of the dangers to which he was exposed. Whether this shafting was so located as to be dangerous to employés in the discharge of their duties depends upon the facts and circumstances of the case; and, upon the evidence, we think it clear that the question of whether it was or was not so located as to be dangerous to plaintiff in the discharge of his duty was a question for the jury. Kreider v. Wisconsin R. P. & P. Co., 110 Wis. 645, 86 N. W. 662. We think it equally clear from the evidence that it cannot be said as a matter of law that the plaintiff was guilty of contributory negligence or assumed the risk. Hocking v. Windsor Spring Company, 125 Wis. 575, 104 N. W. 705.

Section 1636j, St. 1898, makes it the duty of the owner or manager of every place where persons are employed to perform labor to securely guard belting, shafting, and gearing which are so located as to be dangerous to employés in the discharge of their duty. But it is claimed by counsel for appellant that the shafting in question here was not so located as to be dangerous, and, besides, the plaintiff was outside of his allotted territory, and when injured was at an unauthorized place; but, as before observed, the testimony is ample to show that plaintiff was engaged in the discharge of his duty and at an authorized place when injured. This being so, the proof amply establishes that the unguarded set screw was dangerous to employés working in the position in which plaintiff was at the time of the injury. Under such circumstances the defendant was bound to guard the dangerous machinery. Klatt v. N. C. Foster L. Co., 97 Wis. 641, 73 N. W. 563. But it is argued that the set screw and danger were open and obvious, and that knowledge of the dangerous condition...