Botorowicz v. Kieckhefer Box Co.

146 N.W. 810, 156 Wis. 562, 1914 Wisc. LEXIS 142

• Court: Wisconsin Supreme Court
• Decided: April 9, 1914
• Status: Published

Opinion

WiNslow, C. J.

In this case an employer who has made tbe most earnest endeavor to meet every statutory requirement as to safety appliances on tbe machinery used by employees has been found guilty of actionable negligence and adjudged to pay heavy damages. It seems from tbe evidence that the guards which had been furnished for these machines were devised in the defendant’s own shop for the purpose of safeguarding the employees of that shop, and that prior to this time even the manufacturer of the machines had not thought a guard necessary or practicable. In order to sustain the finding of the jury to the effect that the defendant was negligent in requiring the plaintiff to use the machine without a guard, it must appear (1) that it was the duty of some other employee to put the guard on the machine, and (2) that it was reasonably practicable to use the machine for making samples with the guard upon it. If either of these propositions be not supported by credible evidence the conclusion of the jury falls.

As to the first proposition we have had very serious doubt. What seems to be the clear preponderance of the evidence supports the conclusion that it was within the sphere of the plaintiff’s own duties to put the guard on the machine when necessary and take it off when necessary. He admits that it was his function to get the machines ready for new jobs, to change the dies when necessary, and that it was necessary to remove the guard when the upper die was changed. To remove or put on the guard it was only necessary to unfasten or refasten two bolts; it could not have been as difficult a task as the task of removing the die. That it was the plaintiff’s duty to put on or take off the guard as occasion demanded was testified to by a number of intelligent and disinterested witnesses, and seems far more consistent with the undisputed facts in the case; nevertheless the plaintiff testified positively that it was not his duty, that he had never done it, and further that his immediate superior, the foreman of the department, told him not to put the guard on. We cannot say this evidence is so overwhelmingly overcome by the evidence to the contrary as to justify us in setting aside the conclusion of the jury on this proposition.

As to the second proposition, however, we have reached a different conclusion. The evidence of the superintendent, the foreman, and the machinist charged with the care of these machines was unanimous to the effect that it was not practicable to have the guard on the machine when samples were being made with large sheets of cardboard, as was admittedly the fact at the time of the accident. The reason given is very persuasive. The male die is a long, straight, flat piece of steel, with a knifelike edge, exactly in front of the operator and at right angles with the surface of the table. When at rest its lower edge is about three inches above the table. When in operation this die moves straight downward until it fits into the female die on the face of the table. It is necessary in making the samples that the operator should clearly see the edge of the die as it approaches the cardboard, in order that he may adjust the board so that the die will come down exactly on the pencil mark. The guard is exactly between the operator and the die. Its lower edge is only five eighths of an inch above the table and its inner surface is only about a quarter of an inch removed from the male die. Thus the only opportunity for the operator to see the pencil mark on the cardboard is through this space about a quarter of an inch in width by two and one-half inches in depth between the inner surface of the guard and the die, and in order to look through this space the operator must bend forward over the table at the risk of seriously disarranging the cardboard, which (if it be a large sheet, as in the present case) projects beyond the table and is likely to touch the body of the operator as he so bends forward, at the same time using his foot on the treadle. So the physical fact seems to us to demonstrate the truth of the testimony given by the witnesses named.

It is true that two witnesses testified that samples could be made on the machine without removing the guard, but one of them did not specify whether he meant that a large sample could be made with the guard on the machine, and the other stated that when the samples “got too big I went on a larger machine.” It is also true tbat the plaintiff testified on the trial tbat it was not necessary to remove tbe guard wben making a sample box sucb as be was then making, but be admits tbat two weeks after tbe accident be stated in writing tbat “when you make a sample box you cannot have a guard on tbe machine, because you got to make pencil marks on tbe paper where you want to crease it, and if tbe guard was on you could not see the marks.” Upon tbe trial, wben shown this statement, be admits tbat be read and understood tbe statement and tbat “so far as it states tbe facts they were tbe truth.” Not tbe slightest claim of overreaching or unfairness or lack of comprehension of tbe contents of tbe statement is made.

Tbe trial judge in an opinion written upon tbe various motions made after judgment said tbat there was “great confusion” and “inconsistencies” in tbe plaintiff’s testimony. This characterization is mild to tbe point of euphemism. Careful consideration of tbe whole case convinces us tbat tbe great weight of tbe testimony is against tbe finding of tbe jury on this latter proposition, and tbat weight is so reinforced by tbe physical facts and tbe reasonable probabilities and inferences tbat it is overwhelming. Bannon v. Ins. Co. of N. A. 115 Wis. 250, 91 N. W. 666; Asserin v. Modern B. of A. 147 Wis. 520, 133 N. W. 579.

By the Court. — Judgment reversed, and action remanded with directions to enter judgment for tbe defendant notwithstanding tbe verdict.