Novak v. Nordberg Manufacturing Co.

141 Wis. 298 | Wis. | 1910

WiNsnow, O. J.

Upon the general contentions that there was no negligence in failing to instruct, and that there was contributory negligence shown as matter of law, the case is a close one, but we have reached the conclusion that upon both propositions the ruling of the trial court must be sustained.

The plaintiff had no experience in machinery save in the operation of an electric traveling crane, and this was evidently known to his employer. He was set to work to assist the operator of the boring bar without instruction as to his duties or warning as to the clangers. He was sent to pull off tbe feed gears without instruction. How rapidly these gears revolved does not appear — presumptively rather slowly, as the machine was boring steel; but in any event it seems that it was not very obvious to an inexperienced person how the operation of “pulling off” the feed was to be performed. The raised rim or bead on the hubs, by which it is said they should be pulled off,, was not particularly striking or noticeable, nor do we think it would necessarily occur to an inexperienced employee that this raised projection was made for the purpose of pulling off the gear wheel. Probably it seemed to the trial court, as it impresses us, that this arrangement was.rather a crude and singular way of accomplishing the purpose, and that if such an arrangement is used there is certainly room to say that an utterly inexperienced employee is entitled to instruction when he is required to pull off the gears, and that a failure to instruct may be negligence.

Upon the claim of contributory negligence it is said that in placing his hands on the outer edge of the lower cogwheel while it was in motion he was plainly doing what no man of any degree of intelligence would do without foreseeing the probable injury, and that even a child would foresee the danger. Doubtless he knew that .if his fingers went between the cogwheels they would be crushed; but must it be said as matter of law that he, with his known lack of experience, was bound to know and appreciate the danger of his hand being drawn between the cogs when he took hold of the wheel ? Chopin v. Badger P. Co. 83 Wis. 192, 53 N. W. 452; Wankowski v. Crivitz P. & P. Co. 137 Wis. 123, 118 N. W. 643. We think not. The jury were entitled to believe that when he was first sent to throw off the gears he came back to Hagan and told him he did not know how to do it, and that Hagan again, without instruction, told him to throw them off, with a threat of discharge if he did not do so. Was he not then entitled to believe, or would he not naturally infer, that the gears must move very easily, and tbat a mere touch would accomplish the purpose? As said before, the inference is that the wheels were moving slowly. Now, if he inferred that the pulling off must be very.easy, and he saw nothing in the way of a contrivance or apparatus by which he could do so, what more natural than to suppose that, in view of the slow motion, there would be little if any risk of injury in grasping the wheel itself, on the assumption that it must be so arranged as to at once yield to a trifling pull ?

In view of his known inexperience, his entire lack of instruction, his being sent back after telling his immediate superior that he did-not know how, and the rather obscure method by which it was expected the task would be performed, we do not feel that it can be said as matter of law that the plaintiff was guilty of contributory negligence in taking hold of the wheel.

An instruction was requested and refused to the effect that the plaintiff was interested in the result of the trial “to such an extent that testimony given by him in person in his own favor is in the law looked upon with distrust and suspicion, .and you must carefully scan and weigh if to the end that it be given no more than its just and true weight.” The refusal is alleged to be erroneous, but it» is plainly not so. It is not the law of this state, if indeed it be the law in any jurisdiction, that the evidence of a party is looked upon with distrust and suspicion. On the contrary, this court has frequently held that while it is proper to call the attention of the jury to the interest of a party in weighing his testimony, still that should be done in connection with a general instruction that considerations of interest, appearance, manner, etc., apply to the party in common with all other witnesses. Schutz v. State, 125 Wis. 452, 104 N. W. 90; Anderson v. State, 133 Wis. 601, 114 N. W. 112; Kavanaugh v. Wausau, 120 Wis. 611, 98 N. W. 550. In the present case the court gave a general instruction to' the effect that in considering the weight of his testimony the plaintiff’s interest should be considered and a like test applied to any other interested witness. This covered the ■subject.

The court charged the jury in effect that the presumption in ■case of an adult employee is that he has sufficient intelligence to comprehend the dangers of his employment, but that if there is ignorance, inexperience, or lack of intelligence on the part of the employee, which is or ought to1 be known to the master, and which tends to prevent the employee from comprehending the dangers of his employment, it is the duty of the master to properly instruct and warn'the employee of the dangers to be apprehended. It is not claimed that this is an incorrect abstract statement, but it is claimed that there is nothing in the evidence tending to show that the plaintiff was not a man of ordinary intelligence and hence the instruction was erroneous in this case. Certainly there is ample evidence of the fact of general ignorance and inexperience and ample evidence that the employer ought to have known of them. As to lack of ordinary intelligence, it seems clear that, if (as the jury were entitled to find) the plaintiff returned to Hagan and told him he did not know how to throw off the gears, there was ;a concrete fact which should have raised in Hagan’s mind a ■serious question as to the plaintiff’s intelligence. Appellant ■contends that this fact could Only tend to show inattention or want of thought. But inattention' ~or want of thought often springs from lack of intelligence; and it would seem that if inattention or want of thought was suggested by the act, then all the ordinary and usual causes of inattention or want of thought should have been suggested also.

Finally, it is contended that instructions should have been given to the effect that if plaintiff did not tell Hagan that he did not know how to pull off the feed gear the verdict must be for the defendant. This would hang the whole case on this ■■one disputed fact, which we think would not have been correct.

By the Court. — Judgment affirmed.

KeewiN, J., dissents.