Winkler v. Power & Mining Mach. Co.

• Citation: 141 Wis. 244,124 N.W. 273
• Court: United States State Supreme Court of Wisconsin
• Decision Date: 11 January 1910
• Parties: WINKLER v. POWER & MINING MACHINERY CO.

141 Wis. 244

124 N.W. 273

WINKLER

v.POWER & MINING MACHINERY CO.

Supreme Court of Wisconsin.

Jan. 11, 1910.

Appeal from Circuit Court, Milwaukee County; J. C. Ludwig, Judge.

Action by Robert Winkler against the Power & Mining Machinery Company. Appeal by defendant from a judgment in favor of plaintiff. Affirmed.Doe & Ballhorn, for appellant.

Rubin & Zabel, for respondent.

Among references upon the part of the appellant were the following: Phipps v. Wisconsin Cent. Ry. Co., 133 Wis. 153, 113 N. W. 456;Hamann v. Mil. B. Cp., 127 Wis. 550, 106 N. W. 1081;Hennesey v. C. & N. W. Ry. Co., 99 Wis. 109, 74 N. W. 554;Dugal v. Chip. Falls, 101 Wis. 533, 77 N. W. 878;Lounsbury v. Davis, 124 Wis. 432, 102 N. W. 941;Campshure v. Stand. Mfg. Co., 137 Wis. 155, 118 N. W. 633;Powell v. Ashland, I. & S. Co., 98 Wis. 35, 73 N. W. 573;Schmitt v. Hamilton Mfg. Co., 135 Wis. 117, 115 N. W. 353.

Among references cited upon the part of the respondent were the following: Ryan v. Oshkosh G. L. Co., 138 Wis. 466, 120 N. W. 264;Twentieth Cent. Co. v. Quilling, 136 Wis. 481, 117 N. W. 1007;Estey Organ Co. v. Lehman, 132 Wis. 144, 111 N. W. 1097, 11 L. R. A. (N. S.) 254, 122 Am. St. Rep. 951;Finkelston v. C., M. & St. P. Ry. Co., 94 Wis. 270, 68 N. W. 1005;Duncan v. Grand Rapids, 121 Wis. 626, 99 N. W. 317;Davey v. Janesville, 111 Wis. 628, 87 N. W. 813;Fleming v. Northern T. P. M. Co., 135 Wis. 157, 114 N. W. 841, 15 L. R. A. (N. S.) 701;Grant v. Keystone L. Co., 119 Wis. 229, 96 N. W. 535, 100 Am. St. Rep. 883;Howard v. Beldenville L. Co., 129 Wis. 98, 108 N. W. 48;Castello v. Landwehr, 28 Wis. 522;Stucke v. M. & M. R. Co., 9 Wis. 202;Baxter v. C. & N. W. Ry. Co., 104 Wis. 307, 80 N. W. 644;Blankavag v. B. B. & L. Co., 136 Wis. 380, 117 N. W. 852;Patnode v. Westenhaver, 114 Wis. 460, 90 N. W. 467;Hocking v. Windsor S. Co., 125 Wis. 575, 104 N. W. 705;Van de Bogart v. M. & M. P. Co., 127 Wis. 104, 106 N. W. 805;Guinard v. Knapp-Stout & Co., 95 Wis. 482, 70 N. W. 671.

TIMLIN, J.

The plaintiff in this case had a verdict which may be abbreviated as finding: (1) That he was burned by molten iron falling from a crane ladle in defendant's foundry on May 15, 1907. (2) The apparatus controlling the movement of the crane ladle containing this molten iron was so worn and loose as not to be reasonably safe, etc. (3) This unsafe condition of said apparatus was the proximate cause of the injury to plaintiff. (4) The defendant knew of such unsafety in time to have prevented the injuryby the exercise of ordinary care. (5) The defendant also ought to have known, etc. (6) The plaintiff did not know prior to the injury that said apparatus was not reasonably safe; (7) nor ought he to have so known in the exercise of ordinary care. (8) No want of ordinary care on the part of Frank Miller, a co-employé, caused the injury. (9) No want of ordinary care on the part of the plaintiff. (10) Plaintiff's damages $2,000.

The appellant's counsel assigns numerous errors in the proceedings below, making his principal argument, however, on the proposition that the testimony on the part of the plaintiff relating to the manner in which his injury was inflicted is in contradiction of known physical laws, and therefore impossible and incredible. This proposition must be supported by demonstration, not by mere conflict of evidence, and, in order to present it properly, all the necessary data for demonstration must appear affirmatively, and not depend upon mere credibility of other witnesses. Rasmussen v. Wis., etc., Co., 133 Wis. 205, 113 N. W. 453. The evidence in this case is very deficient in measurements and descriptions, but, supplying defects in the testimony from an exhibit purporting to be drawn to a uniform scale and weighing the facts thus ascertained for the purpose of testing this question, we have the following:

The crane ladle in question was a somewhat circular iron bucket lined with fire brick, and 43 inches in height, having an inside diameter at a point 3 inches below the top of 39 inches, an inside diameter at the bottom of 35 inches, and an inside diameter near the center at the point of suspension of 37 inches. It was suspended on a movable crane by means of a chain hook engaging at the apex of an arched handle somewhat similar to that of an ordinary pail or bucket. This handle arched over the top and extended on the outside down the sides of the ladle or bucket, and connected with the latter by means of two journals protruding from the ladle, and carried at exactly opposite points in its circumference. Each of these journals fitted into journal boxes or sockets in the lower ends of this handle. The center line of suspension of this ladle or bucket in the lower extremities of said handle by means of said journals was 21 inches above the bottom of the ladle, and 22 inches below the extreme top thereof. On the occasion in question, the ladle was filled to within three or four inches of the top with melted iron. The ladle has a capacity of five tons of this melted iron as we understand the evidence. Whether this was three or four inches below the top would be of paramount importance in any attempt at demonstration. We have no evidence showing when the ladle is empty the relative mass above and below the line of suspension. The diameter of the ladle increases toward the top, and there is one inch more in height of the ladle above the line of suspension, but there is the closed heavy lined bottom as against the open top. The top carries a lip or spout over which the metal pours, but the protrusion or projection or the dimensions of this lip or spout are not given. The lining of fire brick or fire clay which covers the inside of the bottom and sides thins off in a curve at the top and the measurements of this curve are not given. This lip and curve materially affect the tilting of the ladle by bringing the molten material farther off from the line of suspension as this heavy bottom affects it in a contrary direction by rising to and remaining at a distance from the line of suspension while the liquid contents seek their level and flow away from the bottom. But from data collected from the drawings it is apparent that, assuming the ladle to be exactly circular and of the varying diameter stated, the cubic contents of the ladle when filled to within 3 inches of the top would be 23,604 inches above and 19,330 inches below the line of suspension. This would leave about 10 per cent. of the whole contents above the line of suspension. Without knowing what mass of the ladle itself was above and what below this line, the last figures are not available for purposes of demonstration. One of the journals on which this ladle was swung extended through its socket or journal box in the lower extremity of the handle several inches. Upon this projection there was attached rigidly a cogwheel of about 20 inches diameter equipped on its periphery with worm cogs concave on their outer edge. On top of this 20-inch wheel and tangent to its circumference and engaging with its cogs was a straight short bar carrying a spiral projection, which for convenience we will call the “screw.” This screw was journaled at each end in journal boxes or sockets rigid upon the outside of the handle. On one end of this screw was a miter gear, and on a short shaft running at right angles with this screw and engaging with it at this end there was also a miter gear, and on the other or outside end of this short shaft was a hand wheel of about 2 feet in diameter. For the purpose of pouring out the molten contents of the ladle, the operator, by turning this hand wheel, imparted through the miter gearing a slow rotary motion to the screw. This last more slowly moved the rigid 20-inch wheel, this tipping the ladle in the required direction, and also holding it back from tipping over too rapidly. The spiral projection, or, in other words, the thread of the screw, did not fit closely between the cogs of the 20-inch wheel, so that, when the operator at the 2-foot wheel began the operation of pouring out the melted iron, the ladle being then perpendicular or it might be slightly inclined in the opposite direction, he must first by putting the screw in motion bring the thread hard against that side of the cogs of the 20-inch wheel opposite to the direction in which he intended to pour. This pressure would continue on that side of the cogs until the ladle had been so far tilted that the center of gravity of the ladle and its contents would fall on that side of the line of suspension toward which the pouring took place. At this point the ladle and its contents would take what the witnesses call a drop. That is, it would lurch in the said direction, changing the pressure of the screw thread against the cogs of the 20-inch wheel to the other side of such cogs, and holding back instead of pushing on these cogs. This would continue until so much of the contents had been poured out that the relative quantity remaining in the...