145 Wis. 632 | Wis. | 1911
It appears from the record that the plaintiff at the time of the injury was eighteen years old and em
1. Error is assigned on the admission of the evidence of one T. A. Walby as an expert witness on the question of the practicability of guarding the sprocket wheel, and it is ■claimed that the witness had not shown himself qualified to testify. The evidence shows that Walby was a factory inspector and had had quite large experience in examination of similar machinery with a view of determining its safety, and testified that he had seen similar machinery in factories guarded, and that such machinery could he guarded, and that he had ordered it guarded in other factories. His knowledge was based upon actual experience in the inspection of sprocket wheels and shafting similar to those in question in factories in northwestern Wisconsin. He was fully qualified to testify as an expert, therefore no error was committed in admitting his evidence. Kath v. Wis. Cent. R. Co. 121 Wis. 503, 99 N. W. 217; Bucher v. Wis. Cent. R. Co. 139 Wis. 597, 120 N. W. 518; Miske v. Thom, 144 Wis. 178, 128 N. W. 858.
2. It is claimed that the plaintiff was not engaged in the line of his duty when injured; that he was employed to clean up around the resaw and assist the regular man in taking away material from it. But there is credible evidence that he was instructed to take the place of the fellows at the saw when necessary, and that the foreman saw him feeding the machine about two hours before he was injured; that the foreman told him to do the work of feeding when the feeder wanted him to and needed him. The plaintiff was corroborated by other evidence, so there is sufficient evidence that at the time of the injury plaintiff was engaged in the line of his duty. The foreman who directed him had charge of the mill and his orders were binding upon the defendant. Johnson v. Ashland W. Co. 71 Wis. 553, 37 N. W. 823; Button
3. As to necessity of guarding the sprocket wheel, if we understand the argument of counsel for appellant correctly they contend that the evidence does not show a case requiring the defendant to guard the sprocket wheel in question, and yet they seem to concede that this court has so held under similar facts. They say, “The question first arises as to whether a sprocket wheel, having a chain running over it, is included within the classification set forth in the statute,” and after discussing the definition of “gear” and “gearing” they say, “In fairness, we would add that in two cases that have come to our attention the court has, without dispute, regarded chain wheels as coming within the statute,” citing Klatt v. N. C. Foster L. Co. 97 Wis. 641, 73 N. W. 563; Berg v. U. S. L. Co. 125 Wis. 262, 104 N. W. 60.
The statute (sec. 16367, Stats. 1898) requires that “all belting, shafting, gearing, . . . which are so located as to be dangerous to employees in the discharge of their duties shall be securely guarded or fenced.” Under the provisions of this statute and the decisions of this court we think it clear that the sprocket wheel and chain in question came within the classification designated by the statute, and if so located as to be dangerous to employees in the discharge of their duties should be securely guarded or fenced. Klatt v. N. C. Foster L. Co., supra; Berg v. U. S. L. Co., supra.
This court has held that, where the law requires some particular thing to be done by a person to guard the personal safety of others, a failure to perform such duty constitutes actionable negligence at the suit of the person of that class injured by such failure of duty without contributory negligence on his part. Sharon v. Winnebago F. Mfg. Co. 141 Wis. 185, 124 N. W. 299; Smith v. Milwaukee B. & T. Exch. 91 Wis. 360, 64 N. W. 1041; Stafford v. Chippewa Valley
The jury found that the sprocket wheel in question was so located as to be dangerous to employees in the discharge of their duties, and that the plaintiff was injured by it without contributory negligence while engaged in the line of his duty. These findings are supported by the evidence and make a case against the defendant.
4. It is further insisted by counsel for appellant that the plaintiff was guilty of contributory negligence as a matter of law. The element of assumption of risk having been removed from the case under the statute, sec. 1636//, Stats. (Supp.‘1906: Laws of 1905, ch. 303), which provides in effect that if it appear that the injury was caused by the negligent omission of the employer to guard or protect his machinery or appliances the fact that the employee continued in such employment with knowledge of such omission does not operate as a defense (Monaghan v. Northwestern F. Co. 140 Wis. 457, 122 N. W. 1066; Miller v. Kimberly & C. Co., supra; Klotz v. Power & M. M. Co. 136 Wis. 107, 116 N. W. 770), the only remaining question under this head is whether the plaintiff was guilty of contributory negligence. The jury found that he was not, and we are convinced that there is ample evidence to support the finding. There is evidence that plaintiff’s first employment in a sawmill was the time he went to work for the defendant in July previous to the injury, and that his work was mainly cleaning up around the saw; that he was not instructed how to feed the machine, and that he paid little attention as to how it was done while others were feeding. Moreover, at the time of the injury he tried to pull the slab which he was about to feed into the machine, but it stuck, and when he pulled it harder it came fast and his hand was caught. In view of the boy’s age, experience,
5. It is lastly argued by counsel for appellant that the damages found by the jury are excessive. It is true they are large in view of the extent of the injuries as appears from the evidence. As we view the evidence we would be better satis^ fled with a smaller verdict. However, the court below on motion for new trial refused to reduce the damages, and after .a careful examination of the record we do not feel justified in disturbing the verdict. We think that the findings of the jury have support in the evidence and that no prejudicial •error was committed on the trial below.
By the Court. — The judgment of the court below is affirmed.