Lillis v. Beaver Dam Woolen Mills, 142 Wis. 128

Lillis v. Beaver Dam Woolen Mills

142 Wis. 128 | Wis. | 1910

Siebeckeb, J.

The plaintiff seeks recovery upon the ground of defendant’s negligence. It is not clear from the record upon what ground of negligence the case was submitted to the jury by the court The court submitted an inquiry as to whether the machine as located at the time and place of the accident was reasonably safe for the plaintiff to *133perform his services, and instructed the jury that they must determine from the evidence whether it was a reasonably safe machine. The question and instructions do not specify wherein the defendant is charged to have been negligent or what is claimed to have made this an unsafe machine. An examination of the pleading leads us to the conclusion that the plaintiff asserts that this was an unsafe machine because of the removal of the lever by which the operation of the feed apron and rollers could be controlled, because of the removal of the discharge spout, or because the machine furnished by the defendant was of defective construction or was in such want of proper repair that an abnormal action resulted and the machine started up after the drive belt had been removed from the drive pulley and the machine had been brought to a standstill. This state of the ease required the court to frame a special verdict to meet these different issues, if he determined that there was credible evidence tending to support any of the alleged charges of negligence. The ■submission of the general question as to whether the machine was a reasonably safe one, accompanied by instructions which do not point out in what respect the jury must find negligence to exist to warrant an affirmative answer to such a ■question, renders the verdict too uncertain upon the litigated issue respecting a defect in the machine, and we cannot ascertain wherein the jury found the machine to be actually defective and unsafe. Did the jury find that the machine was unsafe and dangerous on account of the removal of the lever connected with the feed apron and rollers, because of the removal of the discharge spout, thus exposing the operator to unnecessary danger in cleaning out the clogged wool, or was the machine found defective in construction or for want of repair? The course of propedure adopted leads to dangerous uncertainties, because the determination of the issues framed by the pleadings is left too indefinite and uncertain. However, we need not consider this further, since *134the appellant claims that there is no evidence in the case to' support the jury’s finding upon any of the grounds of the alleged unsafe condition of the machine. The removal of the discharge spout in no way impaired the use of the machine, nor could it in any way have anything to do with the alleged abnormal starting up of the machine while the plaintiff was clearing out the wool that clogged it. Hence it need not be considered as involved in the cause of the plaintiff’s injury.

The plaintiff claims that he was injured by the abnormal action of the machine, in that the large picker cylinder and tire fan suddenly and unexpectedly started to operate after-he had brought the machine to a standstill and while he had his hand near these parts in order to remove the wool that clogged their operation. The question arises: Is there evidence tending to show that the machine was defective and that such defect caused an abnormal starting of the machine after, as plaintiff claims, it was brought to a standstill ? We have examined the evidence with much care to ascertain how the removal of the lever by which the feed apron and rollers were set in motion or stopped could in any way have been a defect related to the abnormal movement of the machine which caused plaintiff’s injury. Confessedly its only purpose was to control the feed apron and rollers. It had no connection with the appliance by which the main drive belt was shifted onto or off from the drive pulley on the large cylinder shaft, by which the machine was set in motion. Its-absence or presence could in no way have started or stopped the main cylinder and fan and have caused plaintiff’s injury. The case is therefore wholly wanting in proof that the omission of this lever constituted a defect in the machine which could proximately have caused plaintiff’s injury.

This brings us to the question: Is there evidence of some other defect in the machine which the defendant permitted to exist and which could have caused plaintiff’s injury? The facts show that the machine is of the type customarily *135used for the purposes for which the defendant used this one, and that it has been used from May, 1903, to the present time in the same condition and location. There is no evidence that it was defectively constructed, out of repair, or that there was a discoverable defect in the machine, aside from the plaintiff’s statement to the effect that on the day in question it unexpectedly started without apparent cause, after he had removed the drive belt from the drive pulley and shifted it onto the loose pulley. There is no evidence of any discoverable defect in the drive belt, pulleys, or shifting apparatus connected therewith which were used in starting and stopping the machine. ISTo evidence was adduced to contradict the showing that the machine was of proper and safe construction and in good repair, except the single statement of the -plaintiff that the large cylinder and the fan started abnormally at the time in question. The respondent relies on this evidence to show that the defendant did not provide a reasonably safe appliance for its servants. This evidence is not of sufficient probative force and weight to sustain an inference that there was a discoverable defect. If the facts be assumed to be as claimed, that the cylinder and the fan unexpectedly started to revolve after the plaintiff had-shifted the power belt to the loose pulley and the machine had come to a standstill and that there was an unexpected movement, still this is not sufficient to show that there was a discoverable defect which ought to have been ascertained by the defendant before the accident. It would have been impossible for the defendant to learn of any defect, for there was no evidence of any defect prior to the accident. On the contrary, the evidence is that it had been used for years without any abnormal action, and that so far as discoverable it was in a proper condition of repair and construction. Under these circumstances the rule is that:

“Undisputed proof of freedom of the machine from all discoverable defects, either in construction or repair, effect*136ually overcomes any inference or presumption arising from the happening of the accident, so as to leave no question in that regard for the jury.” Montanye v. Northern E. Mfg. Co. 127 Wis. 22, 105 N. W. 1043; Fleming v. Northern T. P. Mill, 135 Wis. 157, 114 N. W. 841.

Erom these considerations we are led to the conclusion that the court erred in refusing defendant’s request to direct a verdict in its favor upon the ground that there was no evidence tending to show that the defendant negligently furnished an unsafe machine. This disposes of the case, and the other errors assigned need not be considered.

It may be well to call attention to the following eases hearing on the propriety of submitting questions 5 and 6 of the special verdict, as to whether plaintiff knew and appreciated or ought to have appreciated the danger incident to .putting his hand into the machine to remove the clogging material, as he did. It appears that he had learned from experience in working in and about the mill and its machines the usual conditions and hazards accompanying the business. lie appears to be a man of ordinary intelligence and experience and must be deemed to know the risks incident to open and obvious dangers, such as coming in contact with a running machine like the mixing picker. The danger of injury to an operator from putting his hand into this machine, as plaintiff did, while it is running, is manifestly so open and obvious that an adult of ordinary intelligence and experience will be presumed to have knowledge thereof. It is not a question for determination by a jury. Holt v. C., M. & St. P. R. Co. 94 Wis. 596, 69 N. W. 352; Larsson v. McClure, 95 Wis. 533, 70 N. W. 662; Osborne v. Lehigh Valley C. Co. 97 Wis. 27, 71 N. W. 814.

By the Court. — Judgment reversed, and the cause remanded with directions to dismiss the action.