Zuwodnicek v. Higgins Spring & Axle Co.

• Decision Date: 29 October 1912
• Citation: 138 N.W. 48,151 Wis. 118
• Parties: ZUWODNICEK v. HIGGINS SPRING & AXLE CO.
• Court: Wisconsin Supreme Court

151 Wis. 118

138 N.W. 48

ZUWODNICEK

v.HIGGINS SPRING & AXLE CO.

Supreme Court of Wisconsin.

Oct. 29, 1912.

Appeal from Municipal Court of Racine; William Smieding, Judge.

Action by Wawyrn Zuwodnicek against the Higgins Spring & Axle Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Action to recover damages for personal injuries. The defendant owns a machine shop, and is engaged in the manufacture of steel springs and axles, at the city of Racine. The plaintiff, at the time of the injury, was about 31 years of age, a blacksmith by occupation, and had been in the employ of the defendant, in the capacity of a general workman, for about nine years. On the 11th day of September, 1911, the plaintiff was directed by the defendant to operate a certain machine in its plant, known as a “spring trimmer.” The machine is an upright iron frame, is equipped with stationary lower, and movable upper, knives, is run by belt power, and is used for cutting iron and steel and shearing and trimming off the ends of metal springs. Its dimensions are 31 inches deep, 41 inches wide, and about 30 inches from the ground to the top of the frame, from which the knife, hereinafter referred to, is claimed to have fallen. The knife in question was a piece of steel 4 7/8x5 1/8x1 1/2 inches, and weighed seven pounds. The surfaces, 1 1/2 inches in width, were practically level, so that the cutting surface of the knife formed nearly a right angle with the perpendicular surfaces. The complaint alleges that while plaintiff was operating this machine “a heavy edged tool or knife, designed for use in another trimming machine in said plant, having been taken therefrom for the purpose of being sharpened, and having been theretofore carelessly and negligently placed on the machine which the plaintiff was operating, fell from the said frame of said machine to the floor below, a distance of about 2 1/2 feet, striking said floor where plaintiff was working, with considerable force, and causing a splinter or piece of steel then and there being upon said floor to fly with sufficient force to pierce or penetrate the right eye of the plaintiff and destroy the sight thereof; * * * that the machine upon which plaintiff was working was insecurely fastened to the floor, and was loose on the foundation, and while being operated at the time of said injury, and a long time prior thereto, to the knowledge of the defendant, moved back and forth, shook, and vibrated; * * * that the floor at the place where said heavy edged tool or knife fell was an uneven brick surface, and at all times was littered with large and fine particles and pieces of steel similar to that which was driven into plaintiff's eye; * * * that said defendant was careless and negligent in placing said heavy edged tool or knife upon the frame of said machine, in view of the fact that said machine was insecurely fastened to the floor, and that such careless and negligent act rendered the place where plaintiff was working unsafe, under the circumstances stated; and that by reason of the alleged carelessness and negligence of the defendant plaintiff suffered the loss of his right eye.” The answer admitted the formal, but denied the material, allegations of the complaint.

A special verdict was returned, finding (1) that plaintiff was injured by being struck in the right eye by a piece of steel or iron, caused to be thrown from the floor by the fall of a heavy knife from the framework of the machine at which he was working; (2) that plaintiff had no knowledge of the knife being on his machine before it fell to the floor; (3) that plaintiff's foreman, Martin Christensen, placed the knife on the framework of plaintiff's machine; (4) that said Martin Christensen was guilty of a want of ordinary care in placing said knife on said machine; (5) that the placing of the knife on said machine was the proximate cause of plaintiff's injury; (6) that plaintiff was not guilty of any want of ordinary care which contributed to produce his injury; and (7) damages, $2,500.

On the coming in of the verdict, the usual motions were made by the respective parties, and from a judgment entered in favor of plaintiff on the verdict the defendant appealed.

L. A. Olwell and Burr J. Scott, both of Milwaukee, for appellant.

Wallace Ingalls, of Racine, for respondent.

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

Defendant claims that plaintiff's evidence does not establish an issue for the jury, because (1) it fails to show that Christensen, its foreman, placed the knife on the machine, and that it fell therefrom; (2) because it would be impossible for the knife to fall from the machine if it was placed thereon; and (3) because it would be impossible for plaintiff to be injured as he was by a flying scrap of iron starting from a place on the ground near the toe of his foot.

[1] If plaintiff's case rests in conjecture, or in a weight of mere possibilities, then the verdict in his favor cannot be sustained. To warrant a recovery, the cause of the injury must be established to a reasonable certainty. Hyer v. City of Janesville, 101 Wis. 371, 77 N. W. 729;Hamann v. Milwaukee Bridge Co., 127 Wis. 550, 106 N. W. 1081, 7 Ann. Cas. 458;Schell v. C. & N. W. R. Co., 134 Wis. 142, 113 N. W. 657;Hart v. Neillsville, 141 Wis. 3, 123 N. W. 125, 135 Am. St. Rep. 17;Stock v. Kern, 142 Wis. 219, 125 N. W. 447;Houg v. Girad Lumber Co., 144 Wis. 337, 129 N. W. 633, 140 Am. St. Rep. 1012;Samulski v. Menasha Paper Co., 147 Wis. 285, 133 N. W. 142. Plaintiff's testimony as to how the injury occurred is as follows: “I was about 1 1/2 feet away from the machine. I did not measure the distance. As I turned, the iron fell to the floor and knocked my eye out. The piece of iron was 5?x7?, and more than an inch thick. It was a knife from the machine like the one I was working on. The foreman brought it from the machine shop. I know, because he took them out and went to sharpen them. I know, because I saw him loosen and take them out. I saw him coming back from the east, toward the machine, with them. He was coming between my machine and the bench. He had two knives, one in each hand. Q. Now, do you know how that knife happened to fall from that machine? A. I know that when it fell and knocked my eye out, and I saw it lying on the floor. I know it is the knife the...