153 Wis. 101 | Wis. | 1913
The complaint in this cause averred that plaintiff’s decedent, John Herning, on August 1, 1910, while in the employment of defendant and engaged in performing the duties of such employment, came to his death in consequence of being caught on a revolving shaft so located as to be dangerous to the employees of defendant in the discharge of their duties; that the defendant negligently permitted this shaft to be unguarded and unfenced. One count of the complaint sought to recover damages accruing to the decedent and another damages accruing to his surviving father and mother, a combination which is permissible under our statutes. The jury awarded under the first count above referred to (being the second count of the complaint) $1,227, which included an item of $107 for burial expenses, and under the second count $2,500.
“(1) Did tbe defendant, the Holt Lumber Company, intrust to John Herning the duty of getting the engine and its attachments in proper condition for use at Townsend? A. No.
“(2) Had the defendant the right, in the exercise of ordinary care, to believe that John Herning would properly guard the shaft before operating the engine? A. No.
“(3) Was the shaft by which John Herning was injured so located as to be dangerous to defendant’s employees in the discharge of their duty while using ordinary care ? A. Yes.
“(4) Did any want of ordinary care on the part of John Herning proximately contribute to his injury and death? A. No.
“(5) What sum of money would reasonably compensate John Herning for the damages caused to him by reason of his injury in question? A. (a) Pain and suffering, $1,000. (b) Expenses of medical treatment, $120'. (c) Burial expenses, $107.
“(6) What sum of money will reasonably compensate the father and mother of John Herning, deceased, for the death of their said son ? A. $2,500.”
Appellant contends that the evidence shows without dispute that the decedent was by his employment charged with the duty of putting the engine in question and its attachments, including the shaft, in proper condition for use, and also had charge and control of the operation of such engine, and upon this hypothesis bases two conclusions of law, either of which, it contends, relieves it from liability, viz.: (1) the decedent having been charged by his employer with and having assumed the duty of putting the engine and its attach-' ments into proper condition, was negligent in not guarding or fencing the shaft if it was so located that the law required it to be fenced or guarded, hence cannot recover; (2) decedent should in the exercise of ordinary care have stopped the engine before attempting to lubricate the bearings of the shaft in question.
Without conceding the legal accuracy of the first conclu
If the defendant corporation could pass the statutory duty of covering this shaft down along the line of its employees until it reached the engine driver, who was told by the subordinate foreman employing him that he should assemble and place the machinery, which under the circumstances in evidence must have meant to aid in the assembling and placing thereof, the statute would soon become a dead letter. Decedent’s superior who planned and laid out the work failed to provide a guard for this exposed shaft; so did the next in authority, and the next. The position or location of the shaft with reference to its distance from the floor and its relation to the bearings thereon requiring lubrication could not be changed by the decedent or any one else without an entire reconstruction of the engine, which could only be done in a machine shop. The most that can be said on the evidence is that the plaintiff had the opportunity on his own initiative to devise and place a guard upon the exposed shaft. So ordinarily has any workman. The statute places this duty upon
The special verdict is substantially similar to that in Willette v. Rhinelander P. Co. 145 Wis. 537, 130 N. W. 853, upon which judgment was ordered by this court for the plaintiff provided he consent to a reduction of damages, and such verdict is sufficient.
With reference to the fourth question of the special verdict the case is closer. Decedent could have stopped the engine for the purpose of lubricating the bearings in question. Was he imperatively required to do so in the sense that his omission to take this precaution was negligence in law ? On this point the case is somewhat similar to Koch v. Wis. P. C. Co. 152 Wis. 488, 140 N. W. 37. There the person injured was an engine driver, had power and authority to shut down the engine, but undertook to oil the bearings while in motion. There the emergency was an order to try some- new lubricant which the master desired to experiment with without delay. Here the emergency was the discovery of a hot box. In the former case, instead of shutting down the engine to oil, Koch attempted to oil while the engine was in motion. Here the same thing was done. In Monahan v. Fairbanks-Morse Mfg. Co. 147 Wis. 104, 132 N. W. 983, the act of reaching over a shaft in motion for the purpose of filling grease cups was held not to constitute contributory negligence as matter of
Tbe item of $107, assuming it to be reasonable in amount, for burial expenses, was a charge against tbe estate of decedent which bis administrator must pay out of the assets of tbe estate. Tbe item of $1,000 for pain and suffering was assets of that estate; and tbe verdict allows as compensatory damages to that estate in addition tbe expense of medical attendance and tbe burial expenses. Sec. 3852, Stats., makes burial expenses a debt of tbe estate, and it must be paid either out of tbe $1,000 or out of decedent’s other property if be bad any. In either case it is direct diminution of bis estate caused by tbe wrongful act of defendant. It is included in tbe sum awarded under tbe second count of tbe complaint and covered by tbe fifth question of tbe special verdict. In Secard v. Rhinelander L. Co. 147 Wis. 614, 133 N. W. 45, it was held that such outlay was recoverable by a father under
By the Court. — Judgment affirmed.