Nadau v. White River Lumber Co.

43 N.W. 1135, 76 Wis. 120, 1890 Wisc. LEXIS 60

• Court: Wisconsin Supreme Court
• Decided: March 18, 1890
• Status: Published

Opinion

The following opinion was filed December 3, 1889:

Taylob, J.

The learned counsel for the appellant claims that the .trial court erred in not nonsuiting the plaintiff upon its motion on the trial, upon two grounds: First. They claim that the evidence fails to show any negligence on the part of the defendant in constructing the machinery in the mill, or in neglecting to cover the cog-wheels in the vicinity of the place where the plaintiff was placed to do his work, or in failing to instruct the plaintiff as to the nature of his work when it employed him, or in failing to point out to him the dangerous position of the cog-wheels in the immediate vicinity of the place he was at work; and, second,. on the ground that plaintiff was guilty of contributory negligence; that, under the evidence, it must bei conclusively held that the plaintiff was aware of the situation of the cog-wheels before the accident happened, and that he had sufficient knowdedge to know and fully comprehend the dangerous character of said wheels; and consequently he assumed the danger incident to his work at the time and place of the accident.

After a full consideration of all the evidence in the case, we have no hesitancy in sayipg that there was an abundance of evidence given on the part of the plaintiff tending to show that the place where the plaintiff was set to perform his work was not a reasonably safe place, on account of the immediate vicinity of the uncovered cog-wheels. This court has frequently decided that the law demands of a master or employer that he shall furnish a reasonab^^ safe place in which the eifiployee is to do his work. If the master fails in this respect, he is guilty of negligence; and if an injury occurs to the employee by reason of the dangerous nature of the place where the employee is at work, without any negligence on the part of..the employee which contributed to the injury, the employer is responsible to the employee for the damages sustained by him. This rule has been frequently affirmed by this court, and there is no necessity of calling attention to the uniform decisions of other courts sustaining the rulings of this court on this question. Upon this question, see Dorsey v. Phillips & C. Const. Co. 42 Wis. 583; Bessex v. C. & H. W. P. Co. 45 Wis. 477; Hulehan v. G. B., W. & St. P. R. Co. 58 Wis. 319; Heine v. C. & N. W. R. Co. 58 Wis. 525, 531; Hulehan v. G. B., W. & St. P. R. Co. 68 Wis. 520, 526.

The question in this case was clearly a question for the jui’y. Was it a reasonably safe place for the plaintiff to do his work? W"hat are the facts? The plaintiff was to work in a very narrow alley, not to exceed nineteen inches in width. On the side of this alley, and behind him where he was doing his work, and at a point where it was necessary for him to pass at times in doing such work, was a set of heavy cog-wheels, revolving inward, about eighteen inches above the floor, wholly uncovered on the side next the alley, and covered on the top, so as to be to some extent obscured from the sight of the person working in the alley, and yet revolving so near the alley that the clothes of the employee passing along by them could be readily seized by the revolving wheels, and the limbs of the employee drawn into and crushed by them. We are clearly of the opinion that the jury were justified in finding that the defendant was guilty of negligence in not furnishing a reasonably safe place for the plaintiff to do his work. No intelligent man could well be mistaken as to the dangerous character of this place, especially to a workman unaccustomed to working in a mill and wholl'y unacquainted with tbe working of machinery in general.

, There was also sufficient evidence tending to show that generally mills constructed as this was had this gearing covered on the sides as well as on the top. There being no reason why it could not as well be covered as to run uncovered, and the trifling expense of covering the same, fully justified the jury in answering the first and second questions submitted to them in the negative, and the third, fourth, and sixth in the affirmative. The danger of accidents resulting from the use of such uncovered cog-wheel gearings had become so manifest, especially where run in the immediate vicinity where men are necessarily at work, that the legislature of this state in 1887 made the neglect to cover such gearings an offense. The language of the statute is as follows: “All belting, shafting, gearing, hoists, fly-wheels, elevators, and drums of manufacturing establishments, so located as to be dangerous to employees when engaged in their ordinary duties, shall be securely guarded or fenced, so as to be safe to persons employed in any such place of employment.” [Laws of 1887, ch. 549, sec. 2.] That this set of cog-wheels was dangerous even to the most experienced workman, can hardly admit of a doubt. A slight forgetfulness on the part of the workman while attending to his work might bring him in contact with it. An accidental slip while at work might bring his clothing and limbs in contact with it; and we have no hesitancy in holding that when the employer places such a dangerous piece of machinery, into which his employee by the least forgetfulness or unavoidable accident may be thrown and seriously injured, in the immediate vicinity of a place where his employee must do his work, he fails to furnish lrm a reasonably safe place for doing his work,. and is guilty of gross negligence, especially when the Usefulness of the machine is not enhanced by reason of its being uncovered, and when the expense of covering would be a mere trifling sum. The case of the plaintiff was fully sustained by the evidence on this point.

"We are equally well satisfied that the foreman of the defendant was also negligent in not pointing out to this inexperienced youth the dangers which were incident to his employment when he employed him. The foreman was warned at the time that the plaintiff was wholly without experience in doing work in a mill or in the vicinity of any machinery; that, although he was of such an age as to comprehend that there were dangers in being employed in a mill which were not attendant upon other employments, yet as to the particular nature of such attendant dangers he .was wholly ignorant. Under such circumstances, all courts hold that it is the duty of the employer to instruct the employee as to such attendant dan.gers, and put him on his guard against them. See Strahlendorf v. Rosenthal, 30 Wis. 674, 678; Jones v. Florence Mining Co. 66 Wis. 268, 277; Coombs v. New Bedford Cordage Co. 102 Mass. 572, and other cases cited in the opinion in Jones v. Florence Mining Co., supra.

There was evidence which clearly sustains the finding of the jury “ that prior to the injury the plaintiff did not have sufficient knowledge to comprehend the dangers incident to his employment,” as well as the finding that the defendant knew, or had reasonable cause to know, that the plaintiff was ignorant and inexperienced. It is hardly necessary to cite authorities to show that the defendant in this case is bound by the acts of its foreman in employing and setting the plaintiff at work in the manner he did.

The learned counsel insist that, if it be admitted that there is evidence sufficient to show that the defendant was guilty of negligence which contributed to the accident, still the plaintiff cannot recover, because-he was guilty of contributory negligence in commencing to work in the place pointed out to him by the foreman, and continuing to work there five days and more. It is urged that upon all the evidence in the case it is conclusively established that the plaintiff must have known of the existence of the uncovered gearing, and have fully comprehended the dangers incident to its condition in his immediate vicinity; and therefore, under the general rule, he assumed the dangers incident to his employment, and so cannot recover. Whether the plaintiff knew what is claimed by the learned counsel for the defendant, was not a question of law upon all the evidence, but a question of fact, and was therefore properly submitted to the jury, and they have found against the contention of the learned counsel for the defendant; and that finding is sustained by sufficient evidence. The learned counsel contend that the foreman pointed out the place where the plaintiff was to work before he was employed. It is true the evidence shows that he was taken into the mill, and the place pointed out; but it does not show that he was taken into the narrow alley in which he was to work, and where he might, if his attention had been called to the machinery, have seen this dangerous gearing. The evidence tends to show that the place was pointed out from a point in the mill where this gearing could not be seen. The employee, when accepting an employment, assumes all the risks that are reasonably incident to such employment, and no other, unless the unusual and unreasonable risks of such employment are open and visible, and known to and comprehended by the employee; and in such case he assumes all the risks so known to him, whatever they may be. This I have sometimes thought to be a harsh rule for the workman, and in many cases shields the employer from the re-suits of carelessness and negligence on his part which border upon criminality; yet the rule seems to have received the sanction of the highest courts, and is sustained by the highest authority.

The learned counsel for the defendant also contend that the presumption is that the plaintiff assumed all the dangers incident to his employment, and therefore the burden of proof was upon him to show that he did not know of the danger connected with this uncovered gear. We think in this the learned counsel are in error. The employee is only presumed to assume the dangers usually attendant upon his employment; and, when he shows that he has been injured by a cause or danger not usually or reasonably attendant upon his employment, he is.then entitled to recover, unless it be shown that he knew of such unusual and unreasonable danger, and fully comprehended its nature, at the time of his employment or before the accident happened. The evidence in this case having established the fact that the injury to the plaintiff was caused by a danger which ought not to have attended his employment, and would not have attended it if the defendant had performed its whole duty towards him, there is no presumption that the plaintiff assumed the unusual risk, and the burden of proof is on the defendant to show affirmatively that he did, to the same extent that it is on the defendant to show any other contributory negligence on the part of the plaintiff. The assumption of an unusual risk in any employment by the employee is in the nature of negligence on his part, which, like any other contributory negligence, prevents his recovery.

In the case of Swoboda v. Ward, 40 Mich. 420, 424, the learned court say: “Where the servant shows that the injury he received was in consequence of an increased risk,— one not ordinarily incident to the employment, — growing out of the master’s negligence, the burthen of proof is upon the master to show that the servant knew of and understood the increased danger.” The same rule was laid down by this court in an opinion by the late learned Chief Justice RyAn, in Dorsey v. Phillips & C. Const. Co. 42 Wis. 583. In that case the learned chief justice said, speaking' of the plaintiff in that action: “If he knew, or ought reasonably to have known, the precise danger to him, in the course of his employment, of the cattle chute in question, and saw fit, notwithstanding, to continue in his employment, he might be held to have assumed the extraordinary risk, as well as the ordinary risks, of his service.' . . . But it appears to us that this consequence of acquiescence ought to rest upon positive knowledge . . . of the precise danger assumed, not on vague surmise of the possibility of danger.” In Rummell v. Dilworth, 111 Pa. St. 343, 351, the court say: “The plaintiff cannot be supposed or assumed to have accepted in advance a peril which he could not estimate, and the extent of which, for lack of experience, he could not have known. Whei’e there is any doubt •whether the employee was acquainted, or ought to have been acquainted, with the risk, the determination of the question is necessarily for the jury.” See, also, Cooley on Torts, 661, and cases cited.

Undoubtedly, the correct rule of law has been laid down in the cases above cited. The authorities sustaining the rule are very numerous. Under the rule, as above stated, upon a finding supported by the evidence that the defendant was in default in not furnishing a safe place for the plaintiff to do his work, and the injury to the plaintiff having occurred from its default in that respect, the plaintiff was entitled to recover, unless it was shown by competent evidence that the plaintiff knew of the dangerous gearing in his immediate vicinity, and fully comprehended its dangerous character. The only evidence in the case tending to show that he knew of the danger or comprehended it, was the fact that he had worked near it for five days before the accident happened, and might have discovered it if he had looked for it. The plaintiff testified that he did not know of its existence until he was caught by it. Upon this state of the case, the court could not say, as a matter of law, that ho did know of its existence or that he comprehended its dangerous character." There was the fact that he had worked five days very near it, and could have seen it if his attention was called to it; but this evidence is opposed by the statement of plaintiff, under oath, that he did not see or know of its existence. The learned counsel for the appellant insist that, it is absurd to say the plaintiff did not know of its existence. "We do not think it is necessarily so. This young man, with no experience or knowledge of the machinery of a mill, and having no reason for supposing that there was any dangerous machinery in his vicinity, and while in the mill at work having his attention constantly turned in another direction, might easily have failed to observe this particularly dangerous piece of machinery. The noise and confusion of sounds in a great saw-mill, when running, would distract the attention of one wholly unaccustomed to work in it; and he would be very likely to keep his attention fixed upon the work he had to* do, rather than to be looking about him, to see how the machinery was placed, or to discover its dangerous character. In any view of the case, it was a question for the jury, upon the evidence. Hathaway v. M. C. R. Co. 51 Mich. 253; Huizega v. Cutler & S. Lumber Co. 51 Mich. 272. The jury having found in favor of the plaintiff upon what appears to be sufficient evidence, this court cannot reverse the judgment on the. ground that it is not supported by the evidence.

The only other questions in the case are the exceptions of the defendant to the evidence offered by the plaintiff, and to the instructions of the court to the jury.

The plaintiff offered the evidence of witnesses to show that it was customary in other saw-mills to cover gearing of the kind in question. This was clearly competent on the question as to whether the defendant was negligent in not covering it in its mill. See Huizega v. Cutler & S. Lumber Co. 51 Mich. 276; Swoboda v. Ward, 40 Mich. 423.

To our minds, it was hardly necessary to call experts to prove that this piece of machinery, placed as it was, ought to have been covered. There was no error in permitting the witnesses to testify that this gearing could have been covered on the side. That was a fact perfectly plain to any one; and the only real question was whether it could have been so covered without interfering with its usefulness. If it could, common prudence required that it should be covered.

The testimony of Paul King was objected to. He was present when the defendant employed the plaintiff, and King was called to state what was said at the time between the foreman and the plaintiff’s brother. It seems the plaintiff could not talk English, but his brother could, and he did the talking with the foreman, and interpreted it in French to his brother and King. King was permitted to state what the brother of the plaintiff said at the time as to what the foreman said as to giving him a safe place or there being no danger. It is understood that what is said to a person who acts as an interpreter between the person speaking and other third parties will be repeated to such other parties in the language which they understand. The person speaking through an interpreter virtually says to such other person, “ You listen to what the interpreter says, and he will tell you what I say; ” and what the interpreter says is to be taken as the language of the person speaking through him, and may therefore be admitted in evidence against him, under the rule that the statement of a third person is receivable in evidence against a party who has expressly referred another to him for information as to any matter. See 1 Greenl. Ev. §§ 182, 183. The evidence was properly received.

See note to this case in 43 N. W. Rep. 1135.— Rep.

The learned counsel excepted to the instructions of the court to the jury; and, as we read the printed case, all the instructions were generally. excepted to. After a careful reading of the instructions, they appear to be a correct statement of the law applicable to the facts of the case, and are, on the whole, sufficiently favorable to the defendant.

It is also urged that the damages assessed are excessive. Although the verdict is large, there is no just reason for saying that they are out of proportion to the injury received by this young man. The loss that he has sustained is one that no amount of money can fully compensate. Although the sum awarded him may be a heavy burden for the defendant to cany, it certainly cannot be said that it is more than a just compensation for the plaintiff’s injury.

On the whole, the case seems to have been fairly tried, and we find no errors in the record which call upon this court to reverse the judgment.

By the Court.— The judgment of the circuit court is affirmed.

On a motion for a rehearing there were briefs for the appellant by Miles <& Shea, attorneys, and Pinney & San-horn, of counsel, and a brief for the respondent by Push <& Boland.

The motion was denied March 18, 1890.