Kucera v. Merrill Lumber Co.

65 N.W. 374, 91 Wis. 637, 1895 Wisc. LEXIS 109

• Court: Wisconsin Supreme Court
• Decided: December 17, 1895
• Status: Published

Opinion

WiNslow, J.

The broad claim is made, that the evidence in the case shows, as matter of law, that the plaintiff knew, or ought to have known and appreciated, the risk, and hence that the motion to direct a verdict for the defendant should have been granted. We are unable to agree with this contention. While it is a fact that the wheel was in plain sight, and also that any person must have known that if his arm got into it he would be seriously injured, still we cannot say, as matter of law, that a boy of the plaintiff’s age must be held to have known and appreciated the danger attending his work about the box or bearing. Chopin v. Badger P. Co. 83 Wis. 192. It is true that the evidence showed the plaintiff to have been used to sawmills and unusually bright and intelligent about machinery, but it also showed that his work was performed at night; that his ordinary task was to oil the machinery when not in motion; that the box about which he was engaged was almost out of his reach, so that he had to stand on his tiptoes and steady himself on the bridge tree with one hand, while he felt of the box with the other; that the box was in the shadow; and that his duties Avere such as to necessarily direct his attention to the condition of the box and not to the proximity of the wheel. Tinder all these circumstances, we decline to say, as matter of law, that a boy sixteen years of age must be held to have assumed the risk.

It is also claimed that the circuit court erred in defining ordinary care. The court charged the jury that ordinary care; in this case, is “ such care as boys of his age, intelligence, and experience usually use and exercise under similar circumstances.” This is very clearly correct. The standard or test of ordinary care which is applied to adults is not the standard to be applied to minors. Hemmingway v. C., M. & St. P. R. Co. 72 Wis. 42; Whalen v. C. & N. W. R. Co. 75 Wis. 654. The case of Duthie v. Washburn, 87 Wis. 233, was the case of an adult, and what is there said as to ordinary care must be construed in the light of that fact.

Evidence was admitted, against defendant’s objection, tending to show that the light was a considerable distance from the box, and that there was a shadow over the box, and this is claimed to be error because the complaint does not charge insufficiency of light as a ground of negligence. The evidence was clearly admissible as a part of the res gestee, and as a fact properly to be considered in-determining whether plaintiff assumed the risk, and whether defendant was negligent in not guarding the wheel and in not warning the plaintiff of danger. These were the only purposes for which the evidence was used, and there was consequently no error.

There are, however, errors in the case which necessitate reversal.

1. There is no direct finding, in the verdict, of negligence on the part of the defendant, nor that such negligence was the proximate cause of the plaintiff’s injury. There should be such a finding in order to justify the recovery. The facts are undisputed that the wheel was not guarded or fenced, that the plaintiff received no warning, and that his arm was taken off in the wheel. Therefore it was unnecessary to include any of these facts in the verdict. It was necessary, however, that the verdict should find that the negligence of the defendant was the proximate cause of the injury, and it does not so find. The first question is the only one bearing on the subject, and that only finds that the defendant ought to have known that thei’e was danger to a minor workman like the plaintiff, while using ordinary care in performing his duties, getting, his hand in the machinery and being injured. This does not find, as matter of fact, that there was any danger, nor does it find that it was danger that called for fencing of the machinery, under S. & B. Ann. Stats, sec. 163Qf, or for warning or instruction to the plaintiff. As an abstract question there is some danger in the use of any powerful machinery driven by steam, but it must be such danger as it is negligent not to guard or warn against in order to make it a ground for recovery. We are uninformed by this verdict (1) whether there was any actionable negligence ; (2) if so, whether it was the lack of a guard, or the failure to warn the plaintiff, or both; and (3) whether such negligence was the proximate cause of the injury. Bearing on this point, a question was submitted by the defendant, to be incorporated in the special verdict, as to whether the injury was the result of an accident occurring without the negligence of either party. "We think this was a proper question, under the circumstances of the case, it appearing from the plaintiff’s own evidence that he could not tell how it was done.

2. The court charged the jury that the plaintiff might recover for the pain and suffering which he was “ likely to endure in the future,” resulting from the injury. This was error. Hardy v. Milwaukee St. R. Co. 89 Wis. 183.

3. The plaintiff was allowed to recover damages for the value of his time lost during his minority, and for his loss of ability to earn money during his minority. There was no evidence in the case of emancipation. This question does not seem to have been raised or discussed until after the charge to the jury. The complaint claimed the value of time lost during minority, and evidence on the subject was not objected to. The plaintiff’s father is the guardian ad litem in this case, and after the verdict the plaintiff’s attorneys filed in court a waiver of all rights of action for loss of services during plaintiff’s minority, signed by them on behalf of the father. Upon these facts the circuit court held that the father had waived his claim to these damages and practically conferred his rights upon the plaintiff. There are authorities sustaining the action of the court. Baker v. F. & P. M. R. Co. 91 Mich. 298, 16 L. R. A. 154; Abeles v. Bransfield, 19 Kan. 16; Scott v. White, 71 Ill. 287. The argument in favor of upholding such a judgment, on the ground that the father, by actively assisting in' the prosecution of the claim, will be afterwards estopped from making the same claim himself, seems strong. However, as this judgment must be reversed for reasons before given, and as the question seems unlikely to arise on a new trial, we do not deem it necessary to decide it.

By the Court.— Judgment reversed, and action remanded for a new trial.