137 Wis. 506 | Wis. | 1909
The following opinion was filed November 10, 1908:
The original complaint was quite inartistic. But after setting forth the age, nationality, and occupation of the plaintiff and his lack of knowledge of the English language and the corporate character and the business of the defendant, it averred lack of knowledge of machinery and of the dangers attending its operation and lack of experience on the part of the plaintiff. Defendant had and used a de-, scribed drop hammer, out of repair1 and defective. Defendant, knowing the plaintiff’s want of experience, and without-instructing the plaintiff concerning his duties except as specified, and without warning the plaintiff that there was any danger in working about the drop hammer or that it was liable to fall, ordered the plaintiff to assist the operator of the drop hammer. Plaintiff, assisting without knowledge of the danger, was injured by the hammer dropping upon his hand, which in consequence of this injury was amputated. That if the said defendant by its officers or agents, its superintendent and foreman acting as vice-principals, had warned or in any manner instructed the plaintiff as to the dangers and the use of the said hammer, the precautions to be taken about the same, plaintiff would not have been injured in any manner and would have avoided the said injury. Again:
“That the cause of the injury to this plaintiff was the neglect of the said defendant ... to warn the said plaintiff of the dangers and of the dangerous condition of the said machine.”
We perceive no error in the ruling. It was proper to allow the amendment on the trial. Gates v. Paul, 111 Wis. 170, 94 N. W. 55. Where the complaint is amended on the trial, in order to entitle the defendant to a continuance he must make a showing, if not by affidavit, at least by a statement to the court based on the pleadings apparently supporting such statement, that he is unprepared to meet and cannot, with the evidence at hand or available, meet the issues raised by the amended complaint. Withee v. Simon, 104 Wis. 116, 80 N. W. 77. The amendment here brought about no radical change of the issues and the terms were in the discretion of the court. Ill. S. Co. v. Budzisz, 106 Wis. 499, 82 N. W. 534; McIlquham v. Barber, 83 Wis. 500, 53 N. W. 902; Pellage v. Pellage, 32 Wis. 136, 141; Schaller
The plaintiff was a man grown, twenty-four or twenty-five years of age, a Lithuanian by birth, having little or no knowledge of the English language, and had resided in this country four years, and worked at trucking in the shop in question for about a month prior to his injury. Tips work included bringing material to this drop hammer and leaving it there to be pressed into shape by the operator of the drop hammer. He had also worked at the back of the drop hammer cleaning up the dies on the afternoon of Saturday and for an hour or two on Monday morning up to the time he was hurt. His place of work was at the back of the drop hammer, and had he remained there' he would not have come in contact with the treadle; but he testifies that he was directed to also do such work as he might be directed to do by the operator; that a small piece of iron used in wedging or adjusting the die fell out, as it had done several times before, and that at request of the operator he went around from the back to the front of the drop hammer, put his hand under the upraised hammer to insert this small piece of iron, and while so engaged, with his hand in this position, his foot probably came in contact with the treadle, which caused the hammer to drop on his hand. The treadle was a long bar about four inches from the floor, extending in front of the anvil and
The plaintiff was entitled to the rights and subject to the duties of any other adult man. We cannot presume that because he was born in a foreign country, resided in this country only four years and could not speak English, and was illiterate, he did not possess ordinary common sense- and shrewdness or that he falls within the legal rules applicable to children. The employer was therefore justified in presuming the plaintiff to be an inexperienced adult of ordinary intelligence. The duty of the employer to instruct or warn such person was only that which the rules of law impose upon him with respect to any ordinarily intelligent but inexperienced adult servant. This rule has been stated affirmatively as follows: ;
“The duty of informing the inexperienced employee of the dangers ordinarily incident to the service is upon the employer.” Wolski v. Knapp-Stout & Co. Co. 90 Wis. 178, 63 N. W. 87.
“If a master employs a servant to do work in a dangerous place, or where the mode of doing the work is dangerous and apparent to a person of capacity and knowledge of the subject, yet if the servant employed to do work of such a dangerous character or in a dangerous place, from youth, inexperience, ignorance, or want of general capacity, may fail to-appreciate the dangers, it is a breach of duty on the part of the master to expose a servant of such character, even with his own consent, to such dangers, unless he first gives him such instructions or cautions as will enable him to comprehend them and do his woi'k safely, with proper care on his-part.” Jones v. Florence M. Co. 66 Wis. 268, 28 N. W. 207.
The rule as laid down broadly for this state in the foregoing cases is much more favorable to the injured employee-than the rule on the subject derived from decisions elsewhere. 1 Labatt, Mast. & Serv. ch. 16. Negatively it has been said
“Warning is not required against obvious dangers in ordinary operations which are matters of common knowledge to-*513 all.” Wagner v. Plano Mfg. Co. 110 Wis. 48, 85 N. W. 643.
“The duty to instruct as between master and servant does not exist as to dangers which are so obvious that the servant must be held as matter of -law to be as familiar with them as-the master.” Groth v. Thomann. 110 Wis. 488, 86 N. W. 178.
The master, in order to charge him with this duty, must have known, or ought in the exercise of reasonable care to have known, of the inexperience or lack of knowledge of the servant, and also of the dangerous character of the work. Klochinski v. Shores L. Co. 93 Wis. 417, 67 N. W. 934; Sherman v. Menominee R. L. Co. 77 Wis. 14, 45 N. W. 1079. The adult employee is presumed to understand the ordinary risks of his employment. Nash v. C., M. & St. P. R. Co. 95 Wis. 327, 70 N. W. 293.
“Eailure to instruct or warn an employee as to the risks and hazards attending the employment is not negligence, urn less the employer knew, or ought to have known, that such warning and instruction was necessary.” Sladky v. Marinette L. Co. 107 Wis. 250, 83 N. W. 514.
Again:
“The duty to instruct does not go so tar as to require the master to acquaint the employee with every possible danger to which he may be subjected in the course of his employment. The master has a right to assume that the servant will see and appreciate those dangers which are open and obvious to a'person of ordinary comprehension.” Dahlke v. Ill. S. Co. 100 Wis. 431, 76 N. W. 362.
To the same effect, Thompson v. Edward P. Allis Co. 89 Wis. 523, 62 N. W. 527.
Applying these rules to the case in hand, it is apparent that the defendant had a right to believe that the plaintiff needed no more instruction than any other adult inexperienced person of ordinary intelligence. In the employment and setting to work of such person it would be impossible for the employer to forecast all that might thereafter happen by
The instant case, in its aspect most favorable to the plaintiff, is that the employer directed an adult ordinarily intelligent hut inexperienced man to work at the back of the drop hammer cleaning off the dies and anvil, and also to obey the orders of the operator in front of the drop hammer when requested by the latter. The employer failed to instruct the plaintiff 'as to the identity or the function of the treadle or as to the danger of pressing down upon or coming in contact with the treadle. The plaintiff was called to the front of the drop hammer by the operator of the drop hammer, and while there accidentally touched the treadle with his foot while his hand was under the uplifted hammer, and in this way was injured. The employer was not by law required to explain or instruct against such obvious danger nor with reference to such obvious function of the treadle, nor to anticipate that the servant was ignorant of the existence or of
By the Court. — Judgment reversed, and the cause remanded with directions to dismiss the complaint.
The following opinion was filed January 26, 1909:
The respondent moves for a rehearing, on the ground that this court erred in holding that upon the issues made by the pleadings, and evidence in support thereof, the respondent was a person of ordinary intelligence, and also in holding that the appellant was authorized to treat the respondent as such person. Excerpts from the testimony of the respondent given through an interpreter' are presented, together with the fact that the respondent worked for the appellant at common labor for two months before he was set to work at the back of the drop hammer, and we are reminded that the trial court and the jury had the advantage of .seeing the respondent and hearing him. testify.
We have considered these points and find no reason to alter the former decision. Taking the testimony of the respondent all together there is to our minds nothing in it to indicate that he was not of ordinary intelligence. He stumbled in some answers, whether by reason of the difficulty of rapid and extemporaneous translation into English by the interpreter, or otherwise, we cannot say; but in any event not
In the brief of the respondent for rehearing in the instant case we.find such expressions as:
“The court deals with the plaintiff as a man made on paper, and in so doing ignores his own positive testimony that he knew nothing of the operation of the machine or the function of the treadle.” “There is no escape from the decision that the finding of the jury of this fact is supported by some credible evidence, except as a preconceived notion of the general merits of the litigation be permitted to control the decision.” “This court must determine the .question under an entirely different rule. It should not utterly disregard the jury’s findings, and by assuming the existence of a fact substitute one of its own, as appears to have been done in this case.” “We submit that this decision is unwarranted usurpation by the court of the function of the jury. This court should not, through a process of designating questions of fact as questions of law, under the guise of correcting errors of law, practically abolish trial by jury in personal injury cases where the gist of the action is negligence.”
By the Court. — The motion for rehearing is denied, with $25 costs.