Hynes v. Holt Lumber Co.

147 Wis. 172 | Wis. | 1911

WiNsnow, C. J.

The only claim of negligence is that there was a failure to warn the plaintiff of an occult danger, and the only question now raised is whether the jury’s verdict that there was such failure has any justification in the evidence. We think this question must be answered in the negative for very apparent reasons. It is practically conceded that the wooden plug which was in use when the plaintiff went to work was in no respect, dangerous. Had the plaintiff been content to work with the machine which was furnished him, the accident never would have happened. He created the danger when, of his own motion, he replaced the wooden plug with tbe metal cap. But it is claimed tbat be was entirely justified in putting tbe metal cap wbicb was made for tbe machine back upon it, and tbat when be did so be should have been informed by tbe foreman tbat there was a concealed danger in its use, namely, tbe danger tbat there would be pressure in tbe tank as it filled with water, and tbat such pressure might be great enough to blow off tbe cap in case tbe vent became obstructed by freezing, as is thought to have been tbe case.

Employers who set men at work about complicated machinery are justly charged with tbe duty of explaining to inexperienced or youthful employees any dangers wbicb exist about such machinery and wbicb are not apparent to employees of like apparent age and experience while exercising ordinary care.

Tbe employee, whether young or old, who earns bis bread by bis daily toil, is rightly entitled to be protected from pitfalls in bis path and from dangers wbicb are not apparent. No court, it is believed, has more jealously guarded tbe safety of tbe employee in these respects than this court.

Nevertheless, tbe law does not expect tbe unreasonable. It does not require tbe employer to treat an intelligent employee as if be bad parted company with bis ordinary reasoning powers, or checked bis common sense at tbe parcel room when be entered upon bis work. In a word, it requires tbe employees of ordinary intelligence to know and act upon those simple natural laws and physical facts wbicb are universally acted upon by persons of like apparent intelligence in tbe ordinary affairs of life.

Tbe only material facts which tbe employer in this case could have imparted to tbe employee were: (1) tbat when tbe tank was being filled with water by tbe steam siphon arrangement, some pressure on tbe tank would result in case there was no vent bole in tbe cap; and (2) tbat tbe vent bole in tbe metal top might freeze up on a cold day and thus create a pressure which might be sufficient to blow off the top when the metal strap was disengaged from the hooks.

There would perhaps be room to hold that these matters should be explained to an inexperienced boy, but this plaintiff was neither a boy nor was he inexperienced. He was a man of twenty-six years of age, of ordinary brightness and intelligence. It appears by his own testimony that he attended school in his boyhood and finished the eighth grade, taking grammar, history, arithmetic, and (as he expresses it) “the studies that are called English;” that he was accustomed to read the local newspapers and story books; that he had lived in the city of Oconto most of his life; that for twelve years before his injury he had been at work in or about sawmills and lumber camps; that for most of the time he worked for the Oconto Lumber Company, and saw inore or less of the different parts of the'mill and the workings of machinery; that for four months he was a carriage rider in the mill, operating what is called a “cross feed” saw carriage; that for two months he ran a planer in the mill, starting it and stopping it himself; that'he had been in the engine room and seen the engine and other machinery there a number of times; that he had loaded and graded lumber. In fine, it appears by'his own testimony that,-while not perhaps a skilled laborer, he was certainly something more than an ordinary day laborer, and must have known those things concerning the machinery of lumber mills and camps which the ordinarily intelligent man will pick up during twelve years of such experiences, whether, he will or not.

True, he testified that he did not know what steam was used for, nor hów it was used, also that he did not know anything about a steam engine, and that he did not know that the siphon was operated by steam, or that there must be pressure in the tank if there was no vent when the water flowed into it. Some of these statements are in effect contradicted by statements in the plaintiff’s deposition taken before trial under sec. 4096, Stats. (Laws of 1907, ch. 369) ; but even if they stood without actual contradiction they absolutely refute themselves. They are to all intents and purposes an affront to the intelligence. dSTo being endowed with even a small degree of human reason could work in and about steam machinery for twelve years and remain in that state of complete ignorance which the plaintiff professes. His own invention of the self-registering float or gauge, which he expected to relieve him of the necessity of removing the cap, abundantly shows not only that he knew the elementary laws of nature, hut had considerable-mechanical ingenuity and initiative. He was almost, if not quite, an inventor.

Taking into consideration the plaintiff’s age, his early education, his years of experience with machinery, his demonstrated knowledge of elementary physical and natural laws, we are fully convinced that it must he said as matter of law that he must be conclusively presumed to have known of any danger that there was present in the. filling of the tank with the siphon while the metal top was in use. Whatever dangers there were simply arose from well known natural laws of which a man with his experience could not be ignorant and concerning which he required no warning.

By the Court. — Judgment reversed, and action remanded with directions to enter judgment for the defendant notwithstanding the verdict. .