Wankowski v. Crivitz Pulp & Paper Co.

• Decision Date: 27 November 1908
• Citation: 137 Wis. 123,118 N.W. 643
• Court: Wisconsin Supreme Court
• Parties: WANKOWSKI v. CRIVITZ PULP & PAPER CO.

137 Wis. 123

118 N.W. 643

WANKOWSKI

v.CRIVITZ PULP & PAPER CO.

Supreme Court of Wisconsin.

Nov. 27, 1908.

Appeal from Circuit Court, Marinette County; Samuel D. Hastings, Judge.

Action by William Wankowski against the Crivitz Pulp & Paper Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The plaintiff had judgment for $5,000 and costs against the defendant in an action for personal injury incurred June 10, 1906. There was a special verdict finding that the plaintiff was injured by being caught in the cogs of wheels on revolving shafts which he was attempting to oil, having been ordered to do so by defendant's superintendent. The bearings or cogs in question were squeaking and smoking for want of oil. The work of oiling the machinery was dangerous to an inexperienced person, and the superintendent was negligent in ordering the plaintiff to oil the machinery without instruction or warning as to the danger incident thereunto. This negligence was the proximate cause of plaintiff's injury, and the plaintiff had not at the time he attempted to oil the machinery sufficient instruction, experience, or intelligence to have enabled him by the exercise of ordinary care to have comprehended and appreciated the dangers incident to such work, and there was no contributory negligence on the part of the plaintiff. Errors assigned raise the questions: (1) Whether there was sufficient evidence to go to the jury or support a verdict. (2) In instructing the jury. (3) For improper remarks of counsel. (4) In framing the special verdict. There is also a claim that the damages are excessive.

Among other references upon the part of the appellant were the following: Flaherty v. Harrison, 98 Wis. 559, 74 N. W. 360;Roth v. Barrett Mfg. Co., 96 Wis. 615, 71 N. W. 1034;Wunderlich v. Palatine Ins. Co., 104 Wis. 382, 80 N. W. 467;McCoy v. Mil. St. Ry. Co., 82 Wis. 215, 52 N. W. 93;Beyer v. St. Paul, F. & M. I. Co., 112 Wis. 138, 88 N. W. 57;Muenchow v. Zschetzsche, etc., Co., 113 Wis. 8, 88 N. W. 909;Burnell v. W. Side Ry. Co., 87 Wis. 387, 58 N. W. 772;Groth v. Thomann, 110 Wis. 488, 86 N. W. 178;Upthegrove v. Jones & Adams C. Co., 118 Wis. 673, 96 N. W. 385;Banderob v. Wis. Cent. Ry. Co., 133 Wis. 249, 113 N. W. 738;Van De Bogart v. Marinette & M. P. Co., 127 Wis. 104, 106 N. W. 805;Chybowski v. Bucyrus Co., 127 Wis. 332, 106 N. W. 833, 7 L. R. A. (N. S.) 357;Peake v. Superior, 106 Wis. 403, 82 N. W. 306.

Among other references upon the part of the respondent were the following: Neilon v. M. & M. P. Co., 75 Wis. 579, 44 N. W. 772;Chopin v. Badger P. Co., 83 Wis. 192, 53 N. W. 452;Anderson v. Ch. B. Co., 127 Wis. 273, 106 N. W. 1077;Stork v. Charles Stolper C. Co., 127 Wis. 318, 106 N. W. 841;Horn v. La Crosse B. Co., 123 Wis. 399, 101 N. W. 935;Thompson v. Edward P. Allis Co., 89 Wis. 523, 62 N. W. 527;Taylor v. C. & N. W. Ry. Co., 103 Wis. 27, 79 N. W. 17.Charles A. Vilas, for appellant.

W. B. Quinlan (P. H. Martin, of counsel), for respondent.

TIMLIN, J. (after stating the facts as above).

There is evidence tending to support the following facts: The plaintiff was between 16 and 17 years old at the time of his injury, a dull-witted farm lad without mill experience and wholly illiterate. Besides his farm experience, he had worked about a month in a lumber camp and about another month for the defendant, piling blocks in its pulp mill. The defendant had ample opportunity to know his incapacity and lack of experience prior to June 10, 1906. On the date last mentioned, about 6 o'clock in the morning, after the plaintiff had worked all night and was about ready to go home, the superintendent of defendant ordered him to “oil the machine.” At this time there was in sight a covered box projecting somewhat above the mill floor containing shafts, journals, and cogwheels in operation which were creaking and smoking, apparently heated on account of lack of oil. No warning or instruction was given. The superintendent immediately went away. The plaintiff raised the cover of the box, and, evidently groping or fumbling around within the box with an oil can in his hand for the purpose of finding the place in which to put the oil, his clothing accidentally came in contact with the cogwheels, and he was drawn in and severely injured.

Defendant's counsel attempts to support the first error assigned by a claim that the evidence of the plaintiff to the effect that he was directed by the superintendent to oil the machine is incredible or impossible against all reasonable probabilities, and to support this claim points, first, to the denial by the superintendent that he gave such order; and, second, that the superintendent and other witnesses show that at the time of the accident which the plaintiff testifies occurred immediately after that order the superintendent was at a distance of about 20 rods from the mill. He also presents argumentative deductions from other items of evidence in support of this position. The evidence is, however, without contradiction that the superintendent was in the mill that morning about half past 5 o'clock, and shortly before the plaintiff was injured, and saw the plaintiff. We find nothing to contradict the plaintiff's statement that the box gearings were squeaking and smoking, and it is quite certain that the plaintiff did attempt to oil them. The exact time of the injury or that of the superintendent's visit to the mill is not very clearly shown, and is rather an estimate, so that as an alibi the evidence on this point in rebuttal of plaintiff's claim is rather weak and inconclusive. There may be some improbability in the testimony of the plaintiff to the effect that the superintendent told him to oil the machine because of plaintiff's age and inexperience, and because there was another workman (not then present, however) who was charged with the exclusive duty of oiling the machine, but this would be matter going to the credibility of the witness, and was for the jury. We cannot say there was no evidence to go to the jury on this point. Under proper instructions, the jury found that the plaintiff had a right to understand, and did understand, that the above-mentioned order of the superintendent included oiling the machinery in the box mentioned. This was an inference of fact which the jury might draw. Neither do we think that the danger which might be incurred in oiling this machinery was so obvious to a person of plaintiff's age, understanding, and inexperience as to either relieve the master of his duty to warn as matter of law or to charge the plaintiff as matter of law with contributory negligence.

There was probably...