Schmitt v. Hamilton Manufacturing Co.

| Wis. | Mar 10, 1908

Dodge, T.

The principal contention on appellant’s part is that contributory negligence so conclusively appears from the evidence that the trial court should have directed a verdict in defendant’s favor. Hardly any rule is more firmly established by judicial decision in this state than that an employee assumes the risks of those perils which obviously attend the conduct of his work with its usual accompaniments and incidents, and that a jury is not at liberty to credit his statement of ignorance of those facts which are obvious to his senses or of the perils which are at once apparent upon the application of such reason and intelligence as he has. Hazen v. West Superior L. Co. 91 Wis. 208" court="Wis." date_filed="1895-10-22" href="https://app.midpage.ai/document/hazen-v-west-superior-lumber-co-8184949?utm_source=webapp" opinion_id="8184949">91 Wis. 208, 64 N. W. 857; Roth v. S. E. Barrett Mfg. Co. 96 Wis. 615" court="Wis." date_filed="1897-06-24" href="https://app.midpage.ai/document/roth-v-s-e-barrett-manufacturing-co-8185609?utm_source=webapp" opinion_id="8185609">96 Wis. 615, 71 N.W. 1034" court="Wis." date_filed="1897-06-24" href="https://app.midpage.ai/document/randles-v-waukesha-county-8185612?utm_source=webapp" opinion_id="8185612">71 N. W. 1034; Larson v. Knapp & Stout Co. Co. 98 Wis. 178" court="Wis." date_filed="1898-01-11" href="https://app.midpage.ai/document/larson-v-knapp-stout--co-8185752?utm_source=webapp" opinion_id="8185752">98 Wis. 178, 73 N. W. 992; Bigelow v. Danielson, 102 Wis. 470" court="Wis." date_filed="1899-03-14" href="https://app.midpage.ai/document/bigelow-v-danielson-8186226?utm_source=webapp" opinion_id="8186226">102 Wis. 470, 78 N. W. 599; Gossens v. Mattoon Mfg. Co. 104 Wis. 406" court="Wis." date_filed="1899-10-20" href="https://app.midpage.ai/document/gossens-v-mattoon-manufacturing-co-8186423?utm_source=webapp" opinion_id="8186423">104 Wis. 406, 80 N. W. 589; Helmke v. Thilmany, 107 Wis. 216" court="Wis." date_filed="1900-06-21" href="https://app.midpage.ai/document/helmke-v-thilmany-8186685?utm_source=webapp" opinion_id="8186685">107 Wis. 216, 83 N. W. 360; Groth v. Thomann, 110 Wis. 488" court="Wis." date_filed="1901-05-21" href="https://app.midpage.ai/document/groth-v-thomann-8186991?utm_source=webapp" opinion_id="8186991">110 Wis. 488, 86 N. W. 178; Upthegrove v. Jones & A. C. Co. 118 Wis. 673" court="Wis." date_filed="1903-09-08" href="https://app.midpage.ai/document/upthegrove-v-jones--adams-coal-co-8187702?utm_source=webapp" opinion_id="8187702">118 Wis. 673, 96 N. W. 385; Gardner v. Paine L. Co. 123 Wis. 338, 101 N. W. 700. Accordingly this rule has been applied in the foregoing cases to' charge an employee with knowledge of the existence of a saw or knife when his employment consists in feeding some substance against such saw or knife to be trimmed or cut, and to charge him with apprehension of the likelihood of injury in case any part of his person comes in contact with •such saw or knife; also to charge him with knowledge that when substances on which he works are fed into rollers there is a peril that such rollers will engage his hands or •clothing if he permits contact therewith. So it is difficult to avert the conclusion that this plaintiff, when he was employed to press a hoard against the revolving spindle in order that the edge of said hoard, might he trimmed, was •chargeable with knowledge that at the point of trimming there existed a knife, and that if his hand reached the point of contact with such knife it would he injured; probably, too, the proposition is supported that he must have contemplated that in the application of force to that board his hands were liable to make erratic or excessive motions and might thereby be unintentionally brought to such point of contact. Indeed, he practically admits a conscious knowledge of all such facts but for the misleading information from his superior to which we shall hereafter advert. So far as the situation is governed by what was merely apparent or inferable it would be hard to distinguish his case from Hazen v. West Superior L. Co., supra; Roth v. S. E. Barrett Mfg. Co., supra; Larson v. Knapp & Stout Co. Co., supra; or Groth v. Thomann, supra.

This case, however, is claimed by respondent to be distinguished from the cases and the rule above referred to, in that plaintiff was misled by positive statement from his employer into' the belief, first, that -the knife or knives were not in such a position that his hands, either when upon the board forcing it along, or in any position likely to be reached by slip or other excessive motion, could come in contact with them; and that, by reason of the location of those knives, there did not exist the peril from ,which he suffered. The question presented is whether his testimony to this state of ignorance is credible. His testimony is that on the only occasion when he was called to work upon this planer he evinced reluctance, having heard that planers were dangerous; that the foreman of the shop then said to him, substantially, ■“There is no danger; the knives which trim the board are wholly below its upper surface, and there is uo danger of getting your hands in contact with themthat it was true that the knives then in use were wholly helow the surface of the board; that when he was called upon to work at the planer on the occasion of his injury he had no reason to> suppose that a different condition existed and that he could not see the position of the knives owing to their very rapid revolution. We cannot reject the undisputed evidence as to the statement in fact made to him, nor do we feel, after due consideration, that we must discredit his statement that, in his ignorance' as to the details of the mechanism of the machine, he having never seen it when stationary, he fully believed the accompanying assurance of freedom from danger. The further statement is perhaps the one most assailed, that he did not know that the knives, on the later occasion when injured, extended some three quarters of an inch above the top surface of the board and one half or three quarters of an inch inward from the edge of the board toward his fingers. A study of the appliance shows that, could he have seen this machine when the knives were stationary, with each of them as a separate entity apparent to his sight, these facts must have been known, yet, when we remember that the two knives fitted into the revolving head turned 6,500 times a minute, we think it by no means incredible, as stated, that there was nothing visible outside of the circumference of the three-inch revolving head but a confused bright rim or blur, and that, too; involved in the shavings which the knife cut from the board, so that it was not obvious even i» trained observation that the machine was at that time equipped with a knife which did rise above the level of the board and did protrude within its surface. Nor can we say that a jury might not credit his assertion, in view of his limited familiarity with machinery, that be believed the assurance of his foreman that knives revolving below the surface of the board were free from peril to one performing such work as that imposed upon bim. It was tbis positive assurance from one whom plaintiff might assume to have accurate knowledge, and which might well serve to divert him from the otherwise rational inferences, which distinguishes the situation from those considered in the above-cited cases, and which we think, and conclude, made it possible for reasonable minds to differ upon the question whether he so completely knew or understood the risk that he assumed it, and whether his act in placing his hands so that an accidental slip might reach contact with the knives was negligent. We therefore do not feel at liberty to set aside the finding of the jury on those questions.

The finding of defendant’s negligence is not seriously attacked and needs little discussion. If defendant misled plaintiff into a disbelief in existing perils of which it had knowledge and then exposed him to them under such delusion of safety, it is of course a much plainer failure of duty to him than any mere omission of warning or instruction. Such conduct on defendant’s part is, as we have seen, established by at least some credible evidence and would suffice to support the jury’s finding of negligence.

Exceptions were reserved to the form of certain questions, but appellant’s counsel, with commendable fairness and candor, requests that no reversal of the judgment be had on such technical grounds, with the effect merely to impose the expense of another trial on both parties and with but little likelihood that the correction of any such error could lead to a different verdict. We therefore refrain from discussion of errors assigned thereon.

By the Court. — Judgment affirmed.