292 N.W. 612 | Wis. | 1940
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *102 Action by Edward Tiemann, plaintiff, against Sol May and Leo May, defendants, commenced on November 26, 1938, to recover damages for personal injuries sustained while operating a tractor and corn binder as an employee of defendants. The complaint charges a violation of the safe-place statute. The action was tried to the court and a jury. The jury found that defendants had failed to provide a safe place of employment with respect to the furnishing of guards or shields on a power transmission shaft running from the tractor to the binder. Questions were submitted to the jury whether there was any violation with respect to the type of tripping mechanism used or the kind of rope supplied for this purpose, but the jury did not answer these questions. Plaintiff was found contributorily negligent to the extent of ten per cent and damages were assessed at $11,000. Judgment was entered upon the verdict on October 21, 1939. Defendants appeal. The material facts will be stated in the opinion. Defendants' principal contention is that the evidence does not support the jury's finding that defendants violated the safe-place statute. This calls for a review of the facts.
Defendants own a farm in Kenosha county. Plaintiff was an employee of defendants. In 1935, defendants purchased a 1935 model Case tractor and corn binder, equipped with a device known as a power take-off. When assembled and in working order the tractor not only pulled the corn *103 binder but through the power take-off and attached shaft furnished the power to run the machinery of the corn binder.
[EDITORS' NOTE: THE PICTURE IS ELECTRONICALLY NON-TRANSFERRABLE.]
As indicated in the photograph, the tractor had a type of seat customarily used in farm implements. Under the seat was the power take-off and the shaft leading to the binder. The latter revolved when the binder was in operation. A shield, which was fastened somewhere under the seat of the tractor, covered this shaft for a distance of about nine inches back of the seat. The shaft has a universal joint which is about thirty-one and one-half inches from the rear edge of the seat. The binder contains a tripping device so that bundles may be discharged on the ground, and this device is worked by a rope extending from the tripping device and fastened onto the seat of the tractor. Plaintiff was accustomed to the handling of different types of farm machinery and was an experienced farm worker. On September 24, 1938, he was using the corn binder and tractor. He fastened the rope to the tractor in the usual manner, worked all morning, returned *104 at 1 o'clock in the afternoon and cut corn until the time of the accident. At the time of the accident when he pulled the rope the tractor was in a straight line with the corn binder, and at that time he either lost his balance or in some fashion was pulled off the seat, and his glove and eventually his arm became tangled in the rope and twisted around the shaft. A portion of his arm was pulled off, and further amputation was required.
The question presented upon these facts, none of which are in serious dispute, is whether it was open to the jury to conclude that there had been a violation of sec. 101.06, Stats., which, so far as material, reads:
"Every employer shall furnish employment which shall be safe for the employees therein and shall furnish a place of employment which shall be safe for the employees therein and for frequenters thereof and shall furnish and use safety devices and safeguards, and shall adopt and use methods and processes reasonably adequate to render such employment and places of employment safe. . . ."
Sec.
"The phrase `place of employment' shall mean and include every place, whether indoors or out or underground and the premises appurtenant thereto where either temporarily or permanently any industry, trade or business is carried on, or where any process or operation, directly or indirectly related to any industry, trade or business, is carried on, and where any person is directly or indirectly, employed by another for direct or indirect gain or profit, but shall not include any place where persons are employed in private domestic service or agricultural pursuits which do not involve the use of mechanical power."
Sec.
"The term `safe' or `safety' as applied to an employment or a place of employment or a public building, shall mean such freedom from danger to the life, health, safety or welfare of employees or frequenters, or the public, or tenants or firemen, and such reasonable means of notification, egress and escape in case of fire, and such freedom from danger to *105 adjacent buildings or other property, as the nature of the employment, place of employment, or public building, will reasonably permit."
By the terms of sec.
In Rosholt v. Worden-Allen Co.
All of the foregoing discussion has, of course, been upon the assumption that there is room for the inference drawn by the jury that the safety devices upon defendants' corn binder were not reasonably adequate to make the employment safe. After a careful consideration of the evidence we are of the view that there was reasonable basis for the inference drawn. The protective shield over the power shaft of this binder-tractor combination only extended some nine inches back of the seat. This, together with the fact that loss of balance upon the seat o, r a fouling of the trip rope in the exposed universal joint might easily subject an operator to contact with the shaft and consequent injury, gives reasonable support to a finding that the guards on defendants' machine were not reasonably adequate to render safe the employment on or about it. There were in evidence safety devices on machines of other makes in which the entire shafting or most of it was fully protected from even the possibility of a trip rope fouling or a person getting his hand into the shafting. These devices were properly in evidence as illustrations of methods by which the shaft could be adequately protected. *108
In view of this conclusion, we see no reason for considering plaintiff's claim that certain orders of the, industrial commission apply and establish as a matter of law that defendants' machine was inadequately guarded. The most that can be claimed for such rules by defendants is that they are inapplicable, which leaves the case to be determined by the principles heretofore discussed.
Defendants next contend that the court erred, (1) in rejecting evidence that machines similarly equipped have been sold extensively on the market since 1934 and that at no time has any report been made to the company that any person has been injured in the operation of machinery; (2) that the testing engineer of the manufacturer had tested the machine involved in the action under all ground conditions and that in these tests the rope at no time came into contact with any moving part of the shafting. Considered as a species of expert testimony, this was inadmissible under the rule inDugenske v. Wyse, supra, in which the court called attention to the fact that the machinery was not complicated and the jury were quite capable of determining its safety without opinion evidence. Considered merely as evidence that there had been no accidents in connection with its operation over a period of some four years or that tests disclosed no unsafe characteristics, the matter offered is so slightly probative as to the safe character of the protective devices as to lead to the conclusion that its exclusion was not prejudicial. Such evidence is generally held inadmissible because of its insignificant probative qualities and its tendency to introduce a multitude of collateral inquiries. Kreider v. Wisconsin RiverPaper Pulp Co.
By the Court. — Judgment affirmed. *109