136 Wis. 388 | Wis. | 1908
The plaintiff, an infant employee of defendant, recovered in the circuit court for Wood county judgment for $5,000 damages for personal injuries incurred by plaintiff coming in contact with an exposed gearing in the defendant’s sawmill. A jury by special verdict found the facts generalized as follows: At the time the plaintiff was injured he was acting within the scope of his ordinary duties as employee and at a place at which he was directed to work by the assistant foreman. The gearing in which plaintiff was caught was so located as to be dangerous to plaintiff and other employees of defendant while performing like services and while in discharge of their ordinary duties as such employees. It was not securely guarded or fenced, and the defendant was in this respect guilty of negligence which was
Errors are assigned in denying the defendant’s motion for a nonsuit, and later its motion to direct a verdict, .and later its motion to order judgment for defendant or grant a new ■trial. These points may be considered together so far as they are based upon alleged inadequacy of proof. Error is assigned in framing the special verdict, in the admission of evidence of a custom in sawmills to guard like gearings, and it is claimed that the damages awarded are excessive. We take up these points in order.
There was evidence tending to show that extending to the west from near the back or west end of a saw for about seventy feet is a series of short parallel rollers, twenty-one in number and three and one-half feet apart from center to center, and each about that length, so that the whole, with the frame supporting them and with the top of that frame decked or covered beween the rollers, formed a sort of long, low table about three feet seven inches wide, seventy feet long, and twenty-nine inches high. Rotary motion was communicated to each roller from a horizontal shaft running along the south side of said table near the south end of the rollers at right angles to the rollers and at a height of twenty inches from the mill floor, and connected with each roller by a bevel gearing. This shaft is driven by a perpendicular shaft coming up through and extending eighteen inches above the mill floor at right angles to the horizontal shaft and engaging with the'latter by means of a bevel gearing, which latter is the gearing upon which plaintiff was hurt. This upright driving shaft comes up through the mill floor and engages with the horizontal shaft at some distance west of the saws and at a point in said roller table just east of where a number of floor chains, forming a carrier for edgings and waste material and moving upon drums north-
Immediately before his injury the plaintiff was ordered to this position on the floor for the purpose of removing the refuse clogged in the east side of the floor chains. The gearing in question was covered by a plank twelve inches wide and two inches in thickness lying flat three or four inches over the gearing, extending one and one-half inches further south than the southmost part of the gearing, and the gearing was inadequately covered on the south side at the time of the injury. This uncovered side of the gearing was the side nearest to any person who might be standing on the floor in the angle formed by the roller table and the floor chains, and it was not unusual for the floor chains to become clogged,, and employees were expected in that case to remove the accumulated material. Erom the foregoing the jury might well find that the gearing in question was so located as to be dangerous to employees in the discharge of their duties.
It is next contended that the evidence establishes without dispute that the gearing in question was originally covered on its south side, but that at the time of the injury the board on the south side had become broken or split off, leaving it partially uncovered; that there is no proof that this existed a sufficient length of time before the injury to plaintiff to charge the defendant with negligence. The statute (see. 1636;] Stats. 1898) provides that gearings so situated
Tbe question of plaintiff’s contributory negligence was for tbe jury. He was called upon to remove tbis debris which clogged tbe floor chains at or about thirty minutes past 5 o’clock in tbe afternoon of Uovember 8th. Tbe lights were at some distance from tbis gearing and tbe gearing was in tbe shadow of tbe slightly overhanging top plank. Tbe place at which be stationed himself in order to do tbis work appears to bave been such as to facilitate tbe doing of tbe work under tbe particular, conditions of clogging then present. He would naturally be obliged to stoop down. There was a projecting set-screw in tbe collar of tbe perpendicular driving shaft just below tbe crown gear, and in doing bis work be might naturally and accidentally, but while in tbe exercise of due care, bave brought bis trousers in contact with either tbe set-screw or tbe gearing, or both. Tbis whole question was for tbe jury.
Tbe seventh question of tbe special verdict is as follows: “Did tbe plaintiff in any manner fail to use ordinary car© which proximately caused or contributed to produce tbe accident?” Tbe jury answered tbis question “Uo.” Taking tbe literal meaning of tbis question and answer, we bave a finding that tbe plaintiff did use ordinary care of that kind which caused or contributed to cause tbe accident. Tbis is
A witness called for the plaintiff testified that he had worked in five or six different sawmills, and was asked whether the gearing and shafting situated similar to the gearing and shafting in question were in those other mills covered. This was objected to as incompetent, and it seems to us that the objection was well taken. But, the statute having imposed upon the defendant the duty of covering the gearing in question, it was in no wise prejudiced by an attempt, however successful or however feeble or insufficient, to prove a corresponding common-law duty.
It is contended that the damages awarded are excessive, and we would have been better satisfied with the result had the circuit judge reduced this verdict by $1,000 or $2,000.
By the Gourt. — The judgment of the circuit court is affirmed.