Egan v. Sawyer & Austin Lumber Co.

| Wis. | Oct 13, 1896

Pinney, J.

We do not think that there is any ground upon which this judgment can properly be reversed. It may be that the verdict was not according to the merits, but that was a question for the circuit court to. determine, in the exercise of a sound discretion, in passing on the motion for a new trial. This court cannot interfere unless there was a want of evidence to sustain the finding of the-jury, and we do not think such is the case. We cannot therefore entertain or consider the question whether the verdict was in accordance with the preponderance of the evidence.

1. The plaintiff was a minor and had had considerable-experience in working in sawmills. His own evidence appears to be somewhat contradictory as to his previous knowledge of the existence of the small circular saw, which was in extremely rapid motion, and by which he was injured. He denied that he ever noticed it, and said that he never took particular notice of the table. His subsequent statements tended to show that he had, in fact, some knowledge of its existence, but the effect of his evidence was for the jury. Less than three inches of the saw was in fact above the table, and sawdust, to some extent, accumulated about it when it was running unused. The evidence of the-witness Peterson goes to show that it was not readily seen; that one could see it when it stopped, but it could not be-readily seen when running. “You could see it wben it stopped, but, when it was running fast, you could see a blue streak, — that was all. You had to be pretty near to notice that the saw was there.” G-oodell’s evidence goes to sustain this view. While he said it could be seen very plainly, he testified that “ it was a very fast-running saw; yet if a man would keep his eyes open and look, if he faiew that the mw was there, he was not in any danger.” G-oodell’s evidence shows that throwing things over the table when the saw was running was pretty risky. The plaintiff was not warned or instructed of the danger arising from the presence of the small circular saw, and whether he should have been so warned, in view of all the facts and circumstances in evidence, and the experience he had had in sawmills, was a question for the jury.

2. The evidence tended to show, and was sufficient to justify the jury in finding, that the defendant was negligent in not covering the saw, or properly guarding it when it was unused and with no attendant. It was revolving with great velocity, under such circumstances that it might be approached by any of the very many operatives of the mill who might inadvertently come in contact with it, and receive serious injury. It .does not admit of doubt that, if negligent in this respect, the defendant would be liable for the consequences of such negligence. It was defendant’s duty to keep the premises where its servants and operatives were to work in a reasonably safe condition. Whether it had failed in its duty in this respect, to the plaintiff’s injury, was, under the evidence in this case, a question of fact for the jury. It is, doubtless, a matter of importance that'mill ■owners and proprietors of machinery should, in their own interest, to avoid injuries and imputations of negligence, exercise proper care and vigilance in guarding machinery, from the movements of which injury may occur to employees, when it may well be done at, a reasonable expense and without interfering with its regular operation and efficiency. Minors are constantly being employed in operating machinery, and about it. The evidence that shows that minors, and adults even, should be cautioned, in certain cases, as to the danger and risks of their employment, goes to show the duty of proprietors to guard machinery so far as necessary and reasonably practicable, to prevent accident and injury. But no rule can be laid down beyond declaring that the question whether the master has performed his reasonable duty is, ordinarily, one of fact for the jury.

3. There was evidence tending to show that at the time of the accident three different tasks had been allotted to the plaintiff to perform, and they were, to a very considerable extent, coincident in their requirements upon his atteution, caution, and prompt action. One of these had been until then the sole duty of another employee. The plaintiff was a minor, and presumptively of immature judgment. The nature of the work he was to do, its requirements, and whether it was such as to confuse him, and disturb the fair exercise of his judgment, by hasty and inconsiderate action, which operated to his prejudice and peril, was a matter of fair inference from the evidence, which fully described the situation and the work required of him. Upon this branch of the case, too, we think the evidence justified the submission of the question whether too great service was required of the plaintiff, in view of his age, capacity, and judgment. This was properly for the jury.

Having arrived at the conclusion that there was proper evidence to sustain all three charges of negligence, the instruction as guarded, in effect that the jury might find for the plaintiff “if the defendant was negligent in some of these respects, as stated,” was correct. Eor these reasons, we think the judgment was not erroneous.

By the Court.— The judgment of the circuit court is affirmed.