Gulland v. Northern Coal & Dock Co.
132 N.W. 755
Wis.
1911
Check Treatment

The following opinions were filed October 3, 1911:

Siebeceee, J.

The jury found by special verdict that the machinery at which the plaintiff worked and which caused his injuries was so located as to be dangerous to employees in the discharge of their duties; that the defendant failed to securely guard it; and that such failure to securely guard it was the proximate cause of the plaintiff’s injuries. The defendant avers that the evidence does not sustain these findings of the jury. The plaintiff’s complaint and the evidence adduced to support it show that the plaintiff charged the defendant with a failure to comply with the requirements of sec. 1636/, Stats. (1898), in not securely guarding the machinery at which the plaintiff was employed as oiler, and that such failure to comply with the law was the proximate cause of plaintiff’s injuries. An examination of the record in the case discloses that the case was tried as one within this statute, and the verdict submitted embraces the issue for a cause of action for the default of defendant to securely guard machinery as required by the provisions of this section of the statutes. The plaintiff contends that the cable and the revolving wheel upon the stationary shaft or axle and the collars attached to the shaft with set-screws holding the wheel in place is of the class of machinery embraced within sec. 1636/, Stats. (1898), and is “so locat.ed as to be dangerous to employees in the discharge of their duty,” and hence should have been securely guarded or fenced. Whether or *395not tbe machinery in question is of tbe nature and bind specified in tbe provisions of tbis section is a question not free from difficulties. In tbe view we take of tbe case it is not necessary to determine tbis question and therefore we do not decide it. If it be assumed, without deciding, that tbe machinery in question is of tbe kind specified in tbis statute, tbe question arises: Is it “so located as to be dangerous to employees in tbe discharge of their duty?” Tbe gist of tbe charge is that tbe plaintiff in tbe performance of bis duty was exposed to tbe dangers of a set-screw projecting above tbe collars bolding tbe revolving wheel in place upon tbe stationary shaft. It appears that the plaintiff’s duty required him to use an oil swab to oil tbe cable running within tbe groove of tbe rim of tbe wheel. Performance of tbis duty in tbe usual and proper course placed bis bands at a distance of from twelve to fifteen inches from tbe shaft and set-screw. In performing tbe duty of oiling there was no occasion for him to bring tbe oil swab and its handle and bis bands nearer than tbis to tbe set-screw or shaft. It is evident from tbe plaintiff’s evidence that tbe only way that any part of tbe oil swab could come into contact with tbe shaft or set-screw in tbe performance of tbis duty was to operate it in some unusual manner and move it into tbe region of tbe set-screw and shaft. There is nothing in tbe evidence that in any manner shows that tbe plaintiff was required to so manipulate tbe swab and handle of tbe oiler as to bring it into tbis region, nor would it in tbe natural course of operation reach to that point. Erom these conditions and circumstances it is obvious that no one would have apprehended that tbe person performing tbe duties of oiler would in tbe performance of bis duty come into contact with the shaft or set-screw. In fact it is difficult to conceive bow either tbis stationary shaft or set-screw could be a danger to any person oiling tbe machinery. Just bow tbe plaintiff came into contact with tbe set-screw as be claims is not shown, nor in what manner bis *396band was cangbt on the sheave under the cable. His evidence fails to disclose how the accident occurred. From the facts in evidence the conclusion must follow that if it he assumed that the shaft and set-screw in question were embraced in the provisions of sec. 1636/, Stats. (1898), (which we do not decide), still it is evident from the facts that they are not so located as to be dangerous to a person discharging the duties of oiler at the place in question, and hence the defendant was not required to securely guard them as is provided by this statute.

It is argued that, if the evidence establishes no cause of action within the contemplation of this statute, plaintiff is entitled to recover upon common-law grounds of negligence, in that the defendant neglected to provide an ordinarily safe place to perform the service required of the plaintiff. It is clear from the complaint and the issues inquired into at the trial that no such cause of action was considered;, tried, or determined by the jury or court. The court held, as the record shows, that the cause of action presented raised the question whether the defendant had complied with the duties imposed by the provisions of sec. 1636/, Stats. (1898), and, if he omitted to comply therewith, whether or not such default proximately caused the injuries. This state of the proceeding authorizes no inference under the provisions of sec. 2858m, Stats. (Laws of 1907, ch. 346), that the court determined the issues not embraced in the verdict but essential to sustain a cause of action for negligence upon common-law rules to furnish plaintiff a safe place to work. The provisions of sec. 2858m are applicable to controverted matters omitted from the special verdict covering the issues raised in the cause of action tried and submitted, and do not apply to matters not embraced within the cause of action litigated upon the trial. We are persuaded that the court erred in denying defendant’s motion to- direct a verdict in its favor.

By the Court. — Judgment reversed, and the cause remanded with directions to award judgment for the defendant.

*397TimxiN, J".

I do not think a stationary bar or axle upon wbieb an idler-pnlley runs comes within the statute, sec. 1636/, which says, “belting, shafting, gearing, hoists, fly-, wheels, elevators and drums.” The nearest word is “shafting,” and that does not include an axle which is not in motion and which neither transmits nor receives motion. I do not think it was intended that a bar of iron which never moves should be securely guarded or .fenced. A set-screw is not required by the statute to be covered except as it is appurtenant to and a part of “shafting.” This set-screw projected three quarters of an inch and was at all times without motion. The guard or fence might project so much and be just as dangerous as the still set-screw.

BabNes, J., took no part.

A motion for a rehearing was denied December 5, 1911.