Wawrzyniakowski v. Hoffman & Billings Mfg. Co.

• Decision Date: 02 May 1911
• Citation: 146 Wis. 153,131 N.W. 429
• Court: Wisconsin Supreme Court
• Parties: WAWRZYNIAKOWSKI v. HOFFMAN & BILLINGS MFG. CO.

146 Wis. 153

131 N.W. 429

WAWRZYNIAKOWSKI

v.HOFFMAN & BILLINGS MFG. CO.

Supreme Court of Wisconsin.

May 2, 1911.

Appeal from Circuit Court, Milwaukee County; F. C. Eschweiler, Judge.

Action by John Wawrzyniakowski against the Hoffman & Billings Manufacturing Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded for new trial.

See, also, 137 Wis. 629, 119 N. W. 350.

The complaint alleges that on November 12, 1901, the plaintiff, then a minor, was employed by defendant, doing general work about its factory and machine shop as directed by the foreman in charge; that in the performance of his duties he was required to draw oil from certain barrels located near a pipe-cutting machine, which consisted of a stand, wheels, shafting, and belt shifter or lever, and saws, which saws were made to revolve with great rapidity when in use, by means of a lever attached to said machine; that just above such machine there was a gas jet for use in supplying light, if necessary, when the machine was in operation, and also to furnish light in that immediate vicinity; that the oil barrels were in a dark place, and that plaintiff found it necessary on this occasion to light the gas in the jet above the machine, and while engaged in so doing he came in contact with the revolving saw, suffering injuries to his right arm and hand; that the pipe-cutting machine was maintained in a defective condition, in that the lever by which the motion of said saws was controlled was so defective and out of repair that power was conveyed to said saws without the application of any force to said lever. The complaint also alleged that an action was brought on behalf of the plaintiff, by guardian, against the defendant within one year after the accident, and that this action was commenced within one year after the time plaintiff became 21 years of age. The answer admitted the injury and put in issue the other material allegations of the complaint, and set forth affirmatively that the notice of injury required by section 4222, Stats. 1898, was not given, and that the cause of action had been compromised and settled.

The jury returned the following special verdict: “Question 1. Was the plaintiff injured on November 12, 1901, by having his right arm cut by a saw in defendant's machine shop, while in defendant's employ? A. 1: Answered by the court, by consent of counsel, ‘Yes.’ Question 2. Was the claim of the plaintiff for damages sustained on account of the injuries received by the plaintiff November 12, 1901, compromised and settled between the parties before the commencement of this action? A. 2: No. Question 3. 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? A. 3: Yes. Question 4. If you answer the third question, ‘Yes,’ then was such place so furnished a reasonably safe place in which to do his work? A. 4: No. Question 5. If you answer the fourth question, ‘No,’ then was such failure to furnish a reasonably safe place a proximate cause of the plaintiff's injury? A. 5: Yes. Question 6. If you answer the fourth question, ‘No,’ then did the defendant negligently fail to warn the plaintiff of the danger of working at such place? A. 6: Yes. Question 7. If you answer the sixth question, ‘Yes,’ then was such failure to so warn the plaintiff a proximate cause of the plaintiff's injury? A. 7: Yes. Question 8. Was there any want of ordinary care on the part of the plaintiff which contributed to his injury? A. 8: No. Question 9. If the court shall finally determine that the plaintiff is entitled to recover, at what sum do you assess his damages? A. 9: $5,000.” Judgment was entered in favor of the plaintiff for $5,000 damages, together with costs, from which judgment defendant appeals.Doe & Ballhorn, for appellant.

Glicksman, Gold & Corrigan, for respondent.

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

Twelve errors are assigned and argued on this appeal. Several of the assignments embody a number of distinct and independent propositions, any one of which, if resolved in favor of the appellant, it is argued, would constitute reversible error. Inasmuch as there must be a new trial of the case, we will discuss as many of the 20-odd points raised as we think would be helpful to the trial court on a retrial of the action. The appellant is obviously wrong in some of its contentions, and a number of questions discussed are not likely to arise when the case is again tried.

[1] The action is brought to recover damages for a personal injury which the plaintiff sustained on November 12, 1901, and was commenced March 1, 1909. The plaintiff was a minor when the injury occurred, and this action was brought within one year after he became of age. On April 24, 1902, plaintiff commenced an action, by guardian ad litem, to recover damages for the same injury. A judgment of dismissal was entered in such action on January 8, 1903. The effect of such judgment was considered by this court on an appeal in such action, reported in 137 Wis. 629, 119 N. W. 350. This court held, as a matter of law, that the attorney for the plaintiff had no authority to stipulate that judgment be entered on the merits. The jury found, as a matter of fact, in the present case that the cause of action had not been compromised and settled. Two grounds of negligence were set forth in the complaint in the first action--failure to guard a saw and furnishing an incompetent fellow servant. Other grounds of negligence are set forth in the present action; one of them the failure of the master to furnish sufficient light to enable the plaintiff to do his work. One of the vital questions on the trial was whether the shop was so dark at the place where plaintiff was requested to draw oil that he was justified in lighting a gas jet in the vicinity of the oil barrel, so as to have sufficient light to do his work properly. This gas jet was located a few inches above a rapidly revolving saw, which apparently was not being operated by any one and was unguarded, and plaintiff claims that he received his injury while engaged in lighting this jet. No notice of injury was served, such as is provided for by subdivision 5 of section 4222, Stats. 1898. The plaintiff contends that service of such notice was unnecessary, because an action to recover damages for the injury had been commenced within one year after it happened. The defendant asserts that the complaint in the former action is simply a substitute for the notice required, where action is not brought within the year, and that it must be treated in the same manner that a notice embodying the facts found therein would be treated, had such a notice been served and no action brought. Tested by such a rule, it is argued that the action cannot be maintained, because recovery is sought on a ground of negligence not found in the first complaint.

Subdivision 5 of section 4222 was amended in 1899 (Laws 1899, c. 307) by adding thereto the following provision: “When an action shall be brought and a complaint actually served therein within one year after the happening of the event causing such damages, the notice herein provided for need not be served.”

The statute just quoted was before the court for construction in Odegard v. North Wis. L. Co., 130 Wis. 659, 675, 110 N. W. 809, 814, under substantially similar facts, and it was there held that: “The statute does not make it essential that the previous complainant shall allege the same grounds of negligence as that upon which the recovery is obtained, nor can we add any such requirement by construction.” It is further held in the case cited that, where an action is brought to recover damages for an injury and the complaint therein is served within one year after the date of such injury, such act is a full compliance with the statute, and in fact takes the case out of the operation of the statute, in so far as it relates to the service of notice of an injury. The case referred to is controlling here. The court has said that the 1899 statute means what its words plainly imply. The Legislature might repeal altogether the provision of section 4222 requiring notice to be given, and it likewise had the power to say that no notice need be given, when an action to recover damages for an injury was begun and a complaint was served within a year after the injury occurred.

[2] 2. It is argued that the court erred in refusing to grant a nonsuit and in refusing to direct a verdict, because the plaintiff failed to prove a cause of action. The plaintiff's employment in the vicinity of the saw was incidental. He was requested to draw some oil from a barrel that stood about four or five feet from the saw. Unless he found or had good reason to believe that it was necessary for him to light the gas in the jet over the saw, in order to draw the oil, he had no business being where he was when he got hurt, and the defendant is not liable for his injury. The appellant insists that the weather reports introduced in evidence show that the sun was shining when the injury occurred; that the greater part of the wall space on the south side of the factory consisted of windows, from which the sunlight was not obstructed in any way; that there were windows in the west end of the factory; that photographs taken without the aid of artificial light show the oil barrels and other objects in their vicinity plainly and distinctly; that the plaintiff made no claim in reference to insufficient light in his original complaint; that he once stated that he was not lighting the gas when he was injured, but was screwing onto the gas jet a nipple which he found on the floor, and which he thought he would put in place, and that he testified that without lighting the gas he could see the oil as it was being drawn. Because of these facts and conditions, this court is asked to say, as a...