Willette v. Rhinelander Paper Co.

• Decision Date: 07 April 1911
• Citation: 130 N.W. 853,145 Wis. 537
• Parties: WILLETTE v. RHINELANDER PAPER CO.
• Court: Wisconsin Supreme Court

145 Wis. 537

130 N.W. 853

WILLETTE

v.RHINELANDER PAPER CO.

Supreme Court of Wisconsin.

March 14, 1911.

Concurring Opinion, April 7, 1911.

Syllabus by the Judge.

Section 1636j of the Statutes did not create a rule of absolute liability. It does not displace the common law standard of care of the master or that of the servant; section 1636jj, added by Laws 1905, c. 303, was enacted in view of section 1636j not increasing the care of the master in any of the particular cases beyond the standard of the great mass of mankind under the same or similar circumstances, nor abolishing the defense of contributory negligence, strictly so-called, or the special form thereof denominated assumption of the risk.

In section 1636jj, added by Laws 1905, c. 303, the Legislature recognized the aforesaid meaning of section 1636j by characterizing failure to comply therewith as “negligent omission,” etc., and recognized its adjudicated purpose as to contributory fault and assumption of the risk, by abolishing competency to establish the matter by a single named circumstance.

In respect to section 1636j, except in situations obviously dangerous, if an employer furnishes such a guard or fence as is in general use among employers of ordinary care under the same or similar circumstances, he has discharged his duty,--the dangerous machinery is securely guarded or fenced within the meaning of the statute,--in that, when all ordinary care to that end shall have been exercised by the master his statutory duty has been performed.

The statute leaves, primarily, the master to determine whether a situation needs guarding or fencing in contemplation thereof, and if so the means and manner of complying therewith, subject to the duty, which is absolute, to exercise all ordinary care in respect to the matter.

When a statute commands the doing of some act by one person for the personal safety of another, without prescribing any penalty for the benefit of the latter in case of his being injured by breach of such command, such breach is negligence per se, as matter of fact, of the grade of want of ordinary care with incidental liability, but rebuttable by proof to the contrary, the same as in ordinary cases of negligent injury, in the absence of express language to the contrary.

The language of section 1636jj, added by Laws 1905, c. 303, abolishing contributory conduct of a claimant for compensation for an injury within the statute, extends only so far as otherwise acceptance of the danger would be provable by knowingly submitting thereto.

Failure to comply with section 1636j of the Statutes in any situation, is not excusable because it is not practicable to so guard or fence as to render such situation reasonably safe for employés to discharge their duty in the exercise of ordinary care.

The effect of the statute is to prohibit the use of such machinery as is mentioned therein, unless by the exercise of ordinary care it can be rendered reasonably safe for employés in the discharge of their duty in the exercise of like care.

It appearing conclusively from the evidence--that an employé received a personal injury by coming in contact with machinery in the discharge of his duty, and the jury having found that such machinery was so located that the employer in the exercise of ordinary care ought reasonably to have apprehended some employé in the exercise of like care might be injured thereby, and that he failed to guard or fence the machinery in respect to such danger, and that the employé was not guilty of any want of ordinary care in respect to the matter--the employer is liable as matter of law.

In the circumstances stated in the foregoing a finding negativing that failure to comply with the statute was the proximate cause of the injury is inconsistent with the other findings and on motion should be changed.

In such circumstances a finding on the subject of proximate cause is nonessential since such element is shown as matter of law from the other facts.

In like circumstances if the negative answer is predicated merely on impracticability to guard or fence without the aid of some implement which was not furnished, then it is equivalent to an affirmative finding.

On reversal of a judgment the cause is to be remanded for a new trial only in case justice requires it, otherwise the court, in harmony with the spirit of the Code, will, if practicable, make such disposition of the case as to terminate the litigation.

The plaintiff, in an action where there has been a trial and an excessive verdict, may be permitted to take judgment for a less sum without consent of the defendant, without prejudicing the latter's right of a jury trial, if the optional amount be placed as low as any jury of fair men rightly instructed would within a reasonable probability place it.

In case of an injury to man of 45 years of age, depriving him of the first, second and part of the third finger of the left hand, causing him the usual amount of pain in such cases, from which he recovered in the course of about two and one-half months so as to return to work at full wages, and without much loss of working capacity for one of his station and a common laborer without future prospects of change in that regard, capable at the best of earning $65 per month,--an award of $4,500 is clearly excessive.

Appeal from Circuit Court, Oneida County; A. H. Reid, Judge.

Action by Joseph Willette against the Rhinelander Paper Company. Judgment for defendant notwithstanding the verdict, and plaintiff appeals. Affirmed on condition that remittitur be made.

Action to recover damages for a personal injury. The following is a summary of the claimed facts upon which the relief was demanded. Plaintiff for some time before he was injured as hereafter alleged, was employed by defendant as oiler. One machine he attended was a large electrically operated pump. There were two horizontal shafts in an iron frame resting on an iron base, the top of which base was about eight inches from the floor. The distance between the inner side of the journal boxes of the shafts was about two feet. One shaft was located on the front of the frame about six feet from the floor and the other was above and back of it in the center of the frame about eight feet from the floor. Power was applied to a pulley on the lower shaft. On each end of that shaft was an 8-inch gear which meshed with and communicated power to 45-inch gears on the upper shaft. There were two pitmans one on each large gear connected therewith by a wrist pin and connected at the lower end with a pump plunger. In operation, the large gears made about 45 revolutions per minute. The bearings on the shafts and the wrist pins needed frequent attention by the oiler. The gears on the upper shaft were wholly unguarded or fenced. On each of the small gears there was a guard on the front side and down and under to near the point where it meshed with its companion large gear. The journals of the upper shaft and wrist pins were out of reach of the oiler while standing on the floor. No appliance was provided with which to overcome this difficulty. During the first of appellant's work there was a pipe stand beside the pump frame forming two steps by means of which he was accustomed to ascend so as to reach the journal boxes and wrist pins. Several weeks before he was injured defendant caused such stand to be removed. Thereafter plaintiff had no way of reaching the places on the upper shaft to be oiled or examined but to stand on the pump base, take hold of some projecting point of the frame or of its connections and so located reach up as high as practicable. By so doing the points needing attention could be looked after with some difficulty. The first time after removal of the pipe stand plaintiff had occasion to examine one of the wrist pins to see if it was overheating was the time when he was injured. It was in the nighttime. It seemed to him the pin on the east side of the pump needed attention. He stepped upon the base of the pump, which, as usual was oily affording an insecure footing. He placed one foot firmly upon the head of a projecting bolt in order to obtain the best footing practicable. He then with his left hand laid hold of the outside of the guard near the lower part of the small gear, that being a convenient place for a handhold. He then with his right hand endeavored to take the temperature of the wrist pin. In doing so without fault on his part his foot slipped, causing his left hand to slide downward and inward on the guard aforesaid till it reached the point where the large wheel revolved toward and passed behind such guard at which point the hand was caught between the gear and the guard so injuring it that he lost the index and second finger. The injury was caused by failure of defendant to so guard or fence the gear as to prevent its being dangerous to plaintiff in the performance of his duties. Some time after the accident plaintiff by reason of the injury aforesaid was obliged to have a part of the third finger amputated.

There were some facts stated as to the particulars of plaintiff's damages and there was an appropriate allegation respecting the giving of notice as required by statute.

Defendant answered admitting the injury and service of notice, alleging that the cause of the injury was absence of any facilities for safely reaching the points to be oiled and insufficient length of the gear guards. The allegations respecting negligence of the defendantwere all put in issue and contributory negligence was pleaded.

There was evidence tending to prove the allegations of the complaint and other matters not specially pleaded but referred to in the verdict.

The jury found as follows: The defendant did not provide a stepladder for use in doing the oiling. The gearing was so located as to be dangerous to the oiler in the discharge of his duties while using ordinary care. Defendant failed to have the gearing securely guarded or...