146 Wis. 621 | Wis. | 1911
Lead Opinion
The following opinion was filed June 1, 1911:
The plaintiff sought to recover damages caused by the negligent act of an incompetent fellow-servant. The court directed a verdict for defendant upon the ground that the act causing the injury was not within the scope of the employment of the fellow-servant. Plaintiff was fifteen and Albert, the fellow-servant, sixteen years of age, both working in defendant’s factory. On the floor in this factory upon which they worked there was considerable machinery. Besides the saw on which plaintiff was injured there was a planer and another crosscut saw. There were also three ripsaws and the usual shafts, belting, and pulleys. From ninety
Among the machinery in this factory was a circular crosscut saw in the lower end of a frame suspended from the ceiling, driven by a belt extending downward parallel with this frame. The frame was SO1 suspended that the frame and saw hung to the east side of the saw. bench or table. The saw was operated by drawing it with its swinging frame by means ■of a handle to the west toward thé operator and across the board or piece lying on the saw table which it was expected to crosscut The man in charge of this crosscut saw stopped the saw and left. Plaintiff and Albert began to clean up ■around the saw. Albert pulled the suspended frame carrying the still saw to the west and braced or blocked it there with a piece of board sixteen or eighteen inches long. Plaintiff went to the east side of the saw bench or table to clean up on that side. While plaintiff was so engaged Albert shifted the belt from the loose pulley to the tight pulley and started the saw. He did this because he wanted to cut a stick in two. Why he wanted to cut the stick in two he could not tell. The jury would have a right to infer that it was a piece of boyish mischief. The frame with the revolving saw in some way escaped from the block or brace and in obedience to gravitation swung back east against the plaintiff and cut off his arm. Albert, testifying for the defendant, says the plaintiff knocked out the brace or block. Plaintiff says he did not. Albert had prior to this time cut canvas on the crosscut saw. He had thrown a stick into a revolving pulley. He had pushed some lumber in play from plaintiff’s truck, and he had indulged in wrestling with plaintiff on this factory floor. The first two appeared to have been isolated items of play
It is contended that the act of Albert in starting the saw was outside the scope of his employment. But that was a question for the jury. The employment in which plaintiff and Albert were engaged at the time of the injury consisted in cleaning up around this crosscut saw. It may hare been necessary or convenient, when cleaning on the east side, to swing the saw with its pendulous frame to the west and block it there. If this was part of the-operation of cleaning up, then the person who swung it over and blocked it should leave the belt on the loose pulley while the saw was in that, position. Instead he negligently started the saw. This latter was not an act so remote or divergent from the work in which plaintiff and defendant were engaged as to justify the court in taking the question from the jury and saying that it appeared affirmatively and as matter of law beyond the scope of Albert’s employment. Daley v. C. N. W. R. Co. 145 Wis. 249, 129 N. W. 1062.
Although the court did not decide the case on that ground, it is next contended that the decision of the circuit court may be supported because there was no sufficient evidence of the incompetency of Albert, and further that there was no sufficient evidence to charge the defendant with notice or knowledge of such incompetency. The evidence is not very satisfactory. It is however proper to consider the nature of the place in which Albert was employed. A mischievous youth inclined to play in the vicinity of saws, belts, and shafting might be quite incompetent when the same youth would be competent in other work. There is evidence from which the jury might infer that Albert was a youth so disposed, and the very act which caused the plaintiff’s injury was an act of this character. Four instances of mischievous or sportive conduct are presented as above indicated. The age of the boy Albert was known to his employer. Some little supervision,
We think this case is within the principle of Molaske v. Ohio C. Co. 86 Wis. 220, 56 N. W. 475, and other cases cited by the appellant. Albert’s father, who worked on the same floor, was by the foreman given charge of Albert with directions to keep him busy. There was another subordinate foreman on the floor, and the general foreman or superintendent had every opportunity to observe these boys, and ordinary care might require him to make an effort to prevent mischievous play on the floor while the factory was in operation, or to discharge any boy who evinced a disposition to indulge in play or marked inattention to his duties amid such dangerous surroundings. Certainly it is a matter of common knowledge that most hoys of sixteen are playful and thoughtless and many of them endowed with a monkey-like mischievousness which might be very dangerous to others in a factory like, that described. Erom this evidence, consisting of the four instances mentioned, the age of the boy, the nature of his surroundings, the opportunity of the master for observation, supplemented by the nature of the act which caused the injury, the jury might have found that Albert was incompetent because of his youth and mischievous propensities to be employed around dangerous machinery, and that the employer ought in the exercise of ordinary care to have known this, and that the plaintiff was injured by the negligence of Albert. It follows that the judgment ought to be reversed.
By the Court. — Judgment reversed, and the cause remanded for a new trial.
Dissenting Opinion
(dissenting). Tbe facts relied on to make tbe question of tbe incompetence of Albert Erickson a jury question, aside from bis age, are tbe following: (1) Tbe plaintiff testified that Erickson sawed a piece of canvas once about a week before tbe accident. Erickson denied that be did so, and there is no proof that any one saw bim do tbe act aside from tbe plaintiff. (2) On one occasion about two months before tbe accident be put a stick in a pulley, for what purpose does not appear. No one apparently saw this but the plaintiff. (3) During tbe three months that these boys worked together plaintiff sometimes pushed lumber off tbe truck which Erickson was handling, to make bim do tbe extra work of picking it up, and Erickson pushed lumber off tbe truck which plaintiff was operating, to make bim extra work. These acts were done three or four times, and there is no evidence that tbe acts were attended by any danger whatever or that any one else knew of them. (4) Tbe plaintiff and Erickson scuffled a few times, generally when tbe whistle blew for tbe noon hour, or shortly before or after. There was no evidence to show that tbe scuffling was carried on in a dangerous place or was attended with any danger.
A boy between sixteen and seventeen years of age who would not lighten tbe burden of his labors 'by th® amount of frivolity indulged in by Albert Erickson during a period of three months would be a freak rather than a normal boy.There may be some who have never been young except in year’s, who have little red blood coursing through their arteries, who carry a perpetual grouch and always look as wise as owls and as solemn as if they were about to have a tooth pulled, but the ordinary boy fortunately is optimistic, more or less mischievous, and his effervescing spirit irresistibly compels him to occasionally indulge in harmless pranks.- We sometimes hear of boy cherubs, but mostly from fond mothers or
Sec. 1728a,. Stats. (Laws of 1907, ch. 523) subd. 1, prohibits the employment of a minor between the ages of fourteen and sixteen years in any factory without first obtaining a permit in writing from one of certain officers therein specified. Subd. 2 of the statute prohibits the employment of a minor under the age of sixteen years to operate saws and other dangerous machinery. This is the latest legislative declaration relative to the employment of minors applicable to the facts of this case. By declaring to be unlawful the employment of minors under the age of sixteen years, the legislature has in effect declared their employment to be lawful when they have passed that age. If this is so, the employer is not guilty of a tort in hiring a minor. It is not negligence per se to employ him, and neither is it permissible for a jury to say that incompetence can be found from the mere fact of age. The accident occurred on August 28, 1907, and the Erickson boy became seventeen years of age on the 23d of November following.
But it is said here that the fact of employment at such an age may be considered in connection with the other facts shown, and that the jury may infer negligence from the combination of all the facts established; This is equivalent to saying that whenever one servant is injured because of the negligence of another, where that other is a minor, incompe
Neither do I think that the decision of the trial court, holding that Erickson was acting entirely outside of the line of his employment when he started the saw, should be set aside. The saw was not in use when the-boys started to clean up. The belt was off the pulley which ran the saw at the time. There is not a -suggestion of any kind in the record that there was any call to put on the belt and start the saw. This court
I am authorized to say that Mr. Justice YiNje concurs in this opinion.
A motion for a rehearing was denied October 3, 1911.
