Karras v. Chicago & Northwestern Railway Co.

162 N.W. 923, 165 Wis. 578, 1917 Wisc. LEXIS 139

• Court: Wisconsin Supreme Court
• Decided: May 15, 1917
• Status: Published

Opinions

Vinje, J.

Was the trial court right in holding that plaintiff was engaged in interstate commerce? There is no •question but that the defendant was so engaged and that any actual repair work to its track at the time and place of injury would be interstate commerce work. Pedersen v. D., L. & W. R. Co. 229 U. S. 146, 33 Sup. Ct. 648. The nature of the work being done at the time of the injury determines whether or not it is an interstate commerce employment. Ruck v. C., M. & St. P. R. Co. 153 Wis. 158, 140 N. W. 1074; Ill. Cent. R. Co. v. Behrens, 233 U. S. 473, 34 Sup. Ct. 646. It appears that the ties plaintiff was peeling had been purchased by defendant at Watersmeet, Michigan, and shipped to this track section. They were dumped in piles of from thirty to fifty and more to be peeled and subsequently used where needed in the repair of the track. They were so used during the summer and up to some time in September. Ties with the bark on were not put into the track. Hence, in order to be fully prepared for track repair, they must be peeled. The peeling, therefore, was a part of the process of manufacture of the ties for the purpose intended. This process, in the case at bar, was carried on independent of, and separate from, a then immediate use of the ties in track repair; It was a preparation of them for future use. That it was done by the defendant upon its right of way instead of by others elsewhere, or that the ties were destined for interstate commerce, cannot constitute the process of their manufacture interstate commerce work. To constitute that there must be an actual entering upon or engagement in such work. A mere manufacture or preparation of material which is destined at some time in the future at some place to he used in interstate commerce work is not enough. Sullivan v. C., M. & St. P. R. Co. 163 Wis. 583 (158 N. W. 321) and cases cited on page 587; Minneapolis & St. L. R. Co. v. Winters, 242 U. S. 353, 37 Sup. Ct. 170. It follows that plaintiff was not engaged in interstate commerce work at the time'of his injury.

Were the jury warranted in finding that defendant was negligent in furnishing a dull and nicked hatchet with a short handle ? It is urged, and there is evidence to support the claim, that a dull and nicked hatchet tends more than a sharp one to throw the chips towards the one using it, and that the head and eyes must he held nearer the work when using a short-handled hatchet than a. long-handled ax. This may be conceded. But it does not follow from such concession that a dulled and short-handled hatchet, for the purpose for which this was used, is not a simple tool within the meaning of the rule announced in Stork v. Charles Stolper. C. Co. 127 Wis. 318, 106 N. W. 841; Meyer v. Ladewig, 130 Wis. 566, 110 N. W. 419; Lehman v. C., St. P., M. & O. R. Co. 140 Wis. 497, 122 N. W. 1059; and in Kolasinski v. C., M. & St. P. R. Co. 164 Wis. 50, 159 N. W. 563. We deem it a simple tool. A man of mature years in the full possession of his senses must be held to comprehend the ordinary and usual results that follow the use of a dulled, short-handled hatchet in the operation of peeling ties. Adult, sane human beings, though not of a high order of intelligence or of great experience, must be accorded some field within which they may be said to fairly comprehend the ordinary and usual results of the work in which they are engaged. If the use of the hatchet in question does not come within that field it is difficult to conceive what does. Plaintiff had used the hatchet two hours before he was hurt and the length of the handle and its dulled condition must have become apparent to him before his injury occurred. True, one may argue that many results may follow this or that condition of a tool, and that the results are not easily ascertainable or understood by men lacking in experience — and one may add by those of the ripest experience when it comes to forecasting all the results that may follow from a given condition. The field of argument is limitless; but one can hardly solve such questions satisfactorily by reasoning. They lie rather within the field of perception, — within that field wherein the average experience of mankind furnishes the best standard. Tested by such experience, we think the hatchet and the use thereof constituted one of those simple tools and operations whose probable results must be held to be practically as familiar to one mature man as to another. Eor that reason no duty devolved upon the defendant to inspect the hatchet or instruct plaintiff in the use thereof. Gibson v. Milwaukee L., H. & T. Co. 144 Wis. 140, 143, 128 N. W. 877.

■ The conclusions reached show that the trial court erred in holding that plaintiff was engaged in interstate commerce and also in not setting aside the answer of the jury to the first question of the special verdict. The result is the judgment must be affirmed, but upon a different ground.

By the Gou-rt. — Judgment affirmed.