107 Wis. 216 | Wis. | 1900
This action was commenced September '9, 1897, to recover damages for personal injuries sustained by the plaintiff while in the employ of the defendant as a ■cutter boy in his paper mill at Kaukauna, March 31, 1896, whereby his right hand and arm were caught and crushed between the revolving cogwheels, and so injured as to render" amputation thereof necessary three inches below the ■elbow. The grounds upon which the plaintiff seeks a recovery are that such cogwheels were unguarded, and unnec-essarily and unreasonably dangerous, and because of the plaintiff’s youth, inexperience, and lack of judgment, and the defendant’s failure to instruct, warn, or caution the plaintiff against such danger. The defendant answered, by way of admissions, denials, and counter allegations, to the ■effect that the injuries sustained by the plaintiff were in consequence of his own gross carelessness and negligence, and were not the result of any negligence on the part of the defendant. At the close of the testimony on the part of the plaintiff the court granted a nonsuit, and from the judgment •entered thereon the plaintiff brings this appeal.
The room in which the machinery was located was about' ■one hundred feet long from east 'to west, and nearly thirty-six feet wide. The paper machines and appurtenances ran from near the westerly end of the room toward the east, a distance of about sixty feet, and were about nine feet wide, and the southerly side of such line of machinery, was about sixteen feet from the south wall of the room, and constituted the front side of such machines, where several operators, including the plaintiff, were supposed to be when at work •and the machines in operation. The machines were protected by being covered. There was no gearing nor cogwheel on that front side, and the plaintiff’s work was to ■clean the machines and lay off the paper when it was run7 ning,— that is, pick it up and lay it on the pile when it ■came from the cutter. The north wall of the room was a
At the time of the injury the plaintiff was sixteen years and six and one-half months of age. He testified to the effect that he quit school when he was twelve years of age;, that he then piled headings in a dry house in Marathon county for one hundred days; that he then came back to Kaukauna, .and went to work in Patten’s paper mill, scraping screens in the pulp room.; that he continued-to
Plaintiff further testified that his father worked in- the defendant’s mill, and procured the position of cutter boy for him in the defendant’s paper mill; that he commenced’
Such is the general outline of the evidence.
Undoubtedly, counsel for the plaintiff is correct in claiming that although the plaintiff had finished his day’s work, and had just changed his clothes preparatory to going home, yet that the relation of master and servant still existed between him and the defendant. Ewald v. C. & N. W. R. Co. 70 Wis. 420; McGregor v. Auld, 83 Wis. 546.
Counsel for the plaintiff contend that the closet in which the plaintiff and others kept their clothing was in dangerous proximity to the cogwheels mentioned. They cite the statute requiring the owner or manager of any factory, workshop, or other place were labor is performed to keep “ all belting, shafting, gearing, hoists, fly-wheels, elevators and
Counsel contend that plaintiff was not only subjected to the danger necessarily incident to the performance of his work, but was allowed to follow the negligent custom of •other employees, and put his coat, etc., in the closet mentioned, without being warned or cautioned by the defendant as tó the danger of getting his clothing in the gearing. Assuming, for the purposes of this case (but without so deciding), that the defendant was negligent in not having .such gearing “ securely guarded or fenced,” as provided bj7 the statute, the question recurs whether the trial court was justified in holding, as a matter of law, upon the undisputed evidence, that the plaintiff assumed the risk of the danger ■complained'of. That is the question submitted by the respective counsel. In a case of personal injury decided herewith (Renne v. U. S. L. Co., post, p. 305), and where the injured person was younger than the plaintiff in the case at bar, it was held that the trial court properly submitted the •question of the assumption of the risk to the jury, and in ■doing so charged them to the effect that if it was a danger “ known and comprehended by him, or was such an open or •obvious danger as that, considering his age, intelligence, experience, judgment, and discretion, he ought, in the exercise of reasonable and ordinary care, to have known and •appreci ated it, then the law ” was “ that the plaintiff as-
Those cases seem to be fairly distinguishable from the •case at bar. In this case there was no uncertainty; no shifting conditions; no ambiguity in the facts or circumstances •or evidence. There was nothing obscure or complex in the .situation. The two cogivheels were near the floor, and in plain sight. As indicated in the statement of facts, the plaintiff testified that he knew there was danger around those wheels; that, if Holán or any one else had told him to be •careful around those wheels, he would simply have told him what he already knew; that he had cleaned up around the gearing that day; that he saw the gearing when he was putting his coat on; that, if he had been facing the machine instead of the closet at the particular moment, the gearing would have been in plain sight, and he could have kept his ■coat out of the wheels. The danger of touching or allowing his clothes to touch the- gearing was, seemingly, just as apparent as it would have been to walk into an open fire, or against a red-hot stove or furnace. His explanation is that he never noticed the gearing; that he never thought of it. He had five weeks’ experience as a cutter boy in the Patten paper mill, near by, and in which he had worked at one thing and another for more than two years. But it is un-mecessary to repeat the evidence, which is given quite fully in the statement.
Upon the facts thus stated, it seems to us that the case •comes within the numerous adjudications of this court which bar a recovery. In the Chopin Case., particularly relied upon -by counsel for the plaintiff, the boy was required to oil the .interior journal of the machín--ry while in motion. Chopin
This court has repeatedly held that the true test as to whether a minor has assumed the ordinary risks of his employment, or is guilty of contributory negligence, is not whether he in fact knew and comprehended the danger, but whether, under the circumstances, he ought to have known and comprehended such danger. Luebke v. Berlin M. Works, 88 Wis. 442; Craven v. Smith, 89 Wis. 126; Casey v. C., St. P., M. & O. R. Co. 90 Wis. 113; Herold v. Pfister, 92 Wis.. 417; Klatt v. N. C. Foster L. Co. 92 Wis. 622, 627; Roth v. S.E. Barrett Mfg. Co. 96 Wis. 615; Larson v. Knapp, Stout & Co. Company, 98 Wis. 178. It has also been repeatedly held that where it appears from the undisputed evidence that the* defect or danger is open and obvious, and such as under the circumstances ought to have been known and comprehended by the plaintiff, then he will be held to have assumed the risk as a matter of law. Id. Such appears to be the case-at bar, and hence the trial court correctly held that the-plaintiff assumed the risk.
By the Oourt.— The judgment of the circuit court is affirmed.
I am unable to agree with the proposition that, as matter of law, the plaintiff assumed the risk in this, case, bu^» think the question was a proper one for the jury. .The plaintiff was a boy sixteen years.of age, of limited experience. While putting on his coat, preparatory to quitting work, in a place provided for that purpose, the garment was drawn into the mesh of unprotected cogwheels. While he knew there was danger about unprotected cogwheels, and that he would be seriously hurt if drawn into-them, I do not think that it can be said that he necessarily knew or ought to have known the danger that his coat.