148 Wis. 76 | Wis. | 1912
The jury found that the belt which ran the inside head of the machine plaintiff operated was so located as to be dangerous to employees in the discharge of their duties. The evidence is conclusive and undisputed that the belt which ran the bottom, head was meant; and it is evident the jury were not misled by the use of the word inside instead of the word bottom. The testimony was all directed to the one belt, hence the mistake in describing it became immaterial. This belt was so located that when plaintiff attempted to adjust the inside head with the wrench it came within two or three inches of his sleeve, and there is evidence to show that it had a wobbly or up-and-down motion which may have brought it even nearer. A rapidly revolving belt so located with reference to where employees are called upon to discharge their duties certainly presents a jury question as to whether or not it comes within the provisions of sec. 163 6/, Stats. (1898), and is required to be securely guarded. The finding of the jury that it did, rests upon sufficient evidence to sustain it.
The trial court evidently treated the knives of the head of the machine as coming within the provisions of the statute, if they were so located as to be dangerous to employees in the discharge of their duties. This was error. They are neither shafting nor gearing within the meaning of the statute, and are not required by it to be guarded. Schmitt v. Seefeld, 139 Wis. 459, 121 N. W. 136.
Whether or not the knives were so located, irrespective of the statutory requirements, as to charge the master with the duty of guarding them because they were dangerous to employees in the discharge of their duties, was a question for the jury. Since they were not required by the statute to be
It is urged by defendant that plaintiff was guilty of contributory negligence as a matter of law in attempting to adjust the head while it and the belts were in motion. There is evidence that he was instructed by the superintendent or foreman to do so, and that other employees customarily did it with the parts in motion. In view of such evidence and of plaintiff’s age and experience, as shown by the testimony, we think the question of his contributory negligence was for the jury, and that their finding upon it should not be disturbed.
The verdict absolving plaintiff from contributory negligence cannot be construed as a finding that he did not assume the risk resulting from the unguarded revolving knives. Especially is this so in view of the fact that the instructions
Plaintiff was a minor, about eighteen years of age. There ivas no evidence in the case to show an emancipation, and yet the trial court instructed the jury that they might allow for diminished earning capacity from the time of the injury instead of from the time of his majority. It is true that in the ease of Sharon v. Winnebago F. Mfg. Co. 141 Wis. 185, 124 N. W. 299, the court held a charge substantially similar not prejudicial error in that case. As there must be a reversal here on other grounds, it is not necessary to decide whether or not the instruction alone constituted ground therefor. Attention, however, is called to the error so that it may not recur if the case be tried again. It appears from defendant’s brief, not contradicted by plaintiff, that an action is now pending between the father of the plaintiff and the defendant to recover for loss of his son’s services during minority. Manifestly the defendant should not be compelled to pay both the father and the son for the diminished earning capacity of the latter during minority.
By the Court. — Judgment reversed, and cause remanded for a new trial.