Olson v. Doherty Lumber Co.

| Wis. | Feb 21, 1899

Marshall, J.

The only reason suggested by appellant why the court should have submitted this case to the jury, which seems seriously urged on the appeal, or worthy of consideration on the record, is that defendant was guilty of a breach of duty to plaintiff is not furnishing two additional live rollers in the roller bench, and while plaintiff was relying on defendant’s promise to remedy such breach of duty the injury occurred, and that such breach was the proximate cause of it. It is conceded that the bench was blockaded with timbers and slabs,’and that plaintiff was engaged in obviating that difficulty when he received his injury. Now, unless the blockade, which was the immediate cause of plaintiff being placed in the position of danger, was caused by the failure of defendant to add the two additional live rollers to the roller bench, and was an event which defendant had reasonable ground to believe was liable to occur as a result of such failure, then, even though there was such failure, it cannot be said to have been the proximate cause of the injury complained of.

It follows necessarily that, unless there be evidence in the record from which a jury would have been warranted in saying that the want of two additional live rollers was the producing' cause of the blockade, no other question need be considered, for that would fully justify the action of the trial court in taking the cause from the jury.

The evidence appears to show beyond reasonable controversy that a short slab,— too short to be carried over the rollers,— dropped down and lay in such a position that a timber ran upon it and stopped just after leaving the live rollers, and that other timbers and slabs came down and lodged on the first, so that the bench was completely blockaded thereby. Such being the facts, clearly the failure t'o have two additional live rollers had nothing whatever to do with the difficulty which caused plaintiff to place himself in the position of danger. It would have occurred just'the same, though perhaps a little further down the table, if there had been two more live rollers. Plaintiff testified that the blockade was caused by a short slab being placed on the rollers, and that the head timber was pretty well down to the slab saw. He did not pretend to say where the short slab came from, but suggested that it might have been placed on tbe rollers by some person, who carried it oyer from the rotary saw. His language is: “ The slab was pretty short, and sometimes they carried the slabs over from the rotary saw, and put them on the roller bed just when they let the timber come down from the carriage, and the timber would catch these short slabs and run upon them. I am certain the slab furthest down on the roller bench at the time I was hurt was a short’ one. I should think it was about four feet long. I don’t know whether that short slab came from the rotary saw or the band.” Again he said: “ The piece of timber came down from the band saw and there was a sla,b in front of the first timber, and there was a slab behind the other timber.” The witness illustrated by using some sticks and a model of the roller and slab bench, and said further, in substance:' One of the timbers came down to within three feet of the slab saw and had a short piece of slab under the end of it so as to prevent its being moved forward without much manual exertion. According to the illustration made by the witness, the three timbers lay one over the other,, the third being crosswise of the roller bed. He further testified: The effect of two additional live rollers would have been to have moved the timbers further along. The timbers would stop as soon as they left the live rollers, and sometimes a little before, without any obstruction in the way.’ Plaintiff was corroborated by other witnesses. The testimony tended to show that two additional live rollers, under ordinary circumstances, would have moved timbers further down the roller bench, but would not have obviated the danger of a blockade being formed as the one in question was formed. The timbers were short’ and would have piled up and obstructed the bench, under the circumstances, regardless of whether there were two more live rollers or not. We find nothing in the evidence connecting the difficulty with the breach of duty complained of, in regard to want of additional live rollers. In going back from the instant of the injury to the producing cause of it, the causal connection is lost, or rather stops at the blockade, if not at the circumstance of the hook slipping from the timber.

Some suggestion is made that the accident may be attributed to actionable negligence in respect to the character of the hook that was furnished plaintiff; that if it had been some longer, or the hook end had been curved instead of straight, and not been so blunt, the accident would not have occurred. The answer to that is that the hook was one of those simple contrivances, so easy of comprehension, as to all the dangers of its use, by any person of ordinary intelligence, even if it were defective in the respects suggested, that actionable negligence of the employer cannot be based on the fact of its being furnished to the employee for use in the performance of his work. In such circumstances, it is presumed that reasonable attention by the employee to those matters which are open, obvious, and easily comprehended by any ordinary person of mature years, will disclose to the employee all the dangers of using the defective contrivance, and he is therefore conclusively presumed to have assumed such dangers as a part of his contract of employment. Borden v. Daisy R. M. Co. 98 Wis. 407" court="Wis." date_filed="1898-02-08" href="https://app.midpage.ai/document/borden-v-daisy-roller-mill-co-8185790?utm_source=webapp" opinion_id="8185790">98 Wis. 407; Holt v. C., M. & St. P. R. Co. 94 Wis. 596" court="Wis." date_filed="1896-12-15" href="https://app.midpage.ai/document/holt-v-chicago-milwaukee--st-paul-railway-co-8185376?utm_source=webapp" opinion_id="8185376">94 Wis. 596.

It follows from what has been said that the verdict was properly directed in defendant’s favor, and that the judgment entered thereon should be affirmed.

By the Gowrt. — Judgment affirmed.