Van de Bogart v. Marinette & Menominee Paper Co.

112 N.W. 443, 132 Wis. 367, 1907 Wisc. LEXIS 128

• Court: Wisconsin Supreme Court
• Decided: June 20, 1907
• Status: Published

Opinion

Cassoday, O. J.

This case was here upon a former appeal. 127 Wis. 104-113, 106 N. W. 805. The special verdict considered on that appeal was substantially the same as on this appeal, except that the damages were less. Pages 107, 108. On that appeal the judgment was reversed on the sole ground that the instructions to the jury were general on questions of ultimate fact, and “plainly informed them of the legal effect of their findings on negligence, contributory negligence, and assumption of risk.” Pages 110, 111. It is claimed that in charging the jury on the last trial the court fell into the same error that was thus held to be fatal on the first appeal. The records in that respect are quite different. Mr. Justice Siebec-Kek, in writing the opinion of the court on that appeal, said:

“Before giving instructions on the special verdict on different aspects of the case, the court charged the jury generally concerning the nature and theory of plaintiff’s case, and the classes of facts they would need to consider in negligence cases.” Page 111.

This may be verified by reference to pages 80 to 83 of the printed case on that appeal. Yol. 809, Cases and Briefs. Sucb general discussion in tbe charge of tbe court on tbat appeal called attention to tbe difference in a simple question of fact and a mixed question of law and fact, like negligence, and told tbe jury tbat it would be necessary to have sucb general instructions in mind in answering some of tbe questions to be submitted by tbe special verdict, and wbicb perhaps might be referred to again in reference to each particular question. Such general discussion in tbe charge of tbe court on sucb former appeal covered tbe question of “pure accident,” partially quoted by my Brother Siebecker in tbe opinion mentioned, also tbe rule requiring a master to provide a reasonably safe place for bis servant to work, and also another general rule as to tbe rights of tbe employer, and also tbe assumption of risk. Such general instructions, covering three printed pages, preceded tbe more specific instructions upon particular questions, some of wbicb were subject to criticism. We have no general instructions preceding specific instructions upon particular questions in tbe case at bar. On tbe contrary, and in tbe language of tbe trial court, tbe questions submitted “are so framed as to require but little in tbe way of instruction.” Any errors assigned in charging tbe jury on tbe specific questions submitted will be considered in their order.

2. No exception was taken to tbe charge of tbe court under tbe first question of tbe special verdict, so it must be regarded as a verity in tbe ease tbat tbe plaintiff was injured by her hair being caught on tbe set-screw used to fasten tbe second slitter from tbe west end of tbe machine to tbe shaft.

3. Exception is taken to a portion of tbe charge under tbe second question submitted to tbe jury to tbe effect tbat, in determining whether the place where tbe plaintiff was working at tbe time of her injury was “rendered not reasonably safe by reason of tbe presence and condition of said set-screw,” tbe jury should “take into consideration all of tbe evidence in tbe case, ... all of tbe facts and circumstances proven in the case.” No other exception was taken to the charge under that question. Assuming for the present that the submission of the question was proper, then the instruction so given was certainly not improper. The jury’s answer to that second question, in the affirmative, determined that the presence and condition of the set-screw rendered the place where the plaintiff was so working at the time not reasonably safe.

4. By the third question submitted to the jury they were called upon to determine whether the defendant was negligent in permitting said set-screw to be and remain on said machine, as it was. After stating that the inquiry referred to in this question was as to the time of the plaintiff’s injury, August 24, 1903, the court charged the jury at some length under that third question, each clause thereof being excepted to by counsel for the defendant. The portions of such charge relating to the statutory requirement are as follows:

“Whether the defendant company was negligent in the regard inquired of in this question depends upon whether or not the said set-screw was so located on the said slitter shaft as to be dangerous to employees while in the discharge of their duties. Our statute provides that the owner or manager of every place where persons are employed to perform labor shall securely guard or fence all shafting which is so located as to be dangerous to employees in the discharge of their duty. And if this set-screw in question was so located on the slitter shaft as to be dangerous to employees in the discharge of their duty, then, under the requirements of said statute, it was the duty of the defendant company to fence or in some way guard said set-screw on said shaft. The failure to guard or fence a set-screw on a shaft so located as to be dangerous to employees while in the discharge of their duty would be negligence. If the set-screw was not so located as to be dangerous to employees in the discharge of their duty, then there would be no occasion whatever for guarding or fencing it in any wise, and there could be no negligence in such case on the part of the defendant company in not guarding or fencing the set-screw in question.”

These instructions speak for themselves, and made the question of the defendant’s negligence in complying with the statute to depend upon whether the set-screw was so located as to be dangerous to employees, with instructions that if it was so located then the statute required it to be guarded and a failure to comply with the statute would be negligence, but if it was not so located then there was no occasion to guard or fence the same in any way. On the former appeal, and as a basis of argument, it was conceded “that the defendant was negligent in not guarding the set-screw in question,” and there was no attempt to show an absence of such negligence. Counsel for the defendant now contend that the question whether the set-screw was so located as to be dangerous to employees was for the court and not for the jury. The statute referred to declares that “all belting, shafting, gearing, hoists, fly-wheels, elevators, and drums” in every place where persons are employed to perform labor, “so located- as to he dcm-gerous to employees in the discharge of their duty, shall be securely guarded or fenced” by “the owner or manager” thereof. Sec. 1636/, Stats. (1898). That statute, in substance, has been in force for twenty years. Oh. 549, Laws of 1887. It has frequently received consideration from this court. Of course, where there is no reason for conflicting inferences, the question is for the court. But there are numerous cases in this court in which it has been held that the question whether the unguarded shafting, gearing, or other appliance was so located as to be dangerous to employees was for the jury and not for the court. Thus it has been held that “whether the statute requires such machinery to be covered or guarded depends upon whether it is so located ‘as to be dangerous to employees when engaged in their ordinary duties,’ ” and that that was a question of fact for the jury. Guinard v. Knapp-Stout & Co. Co. 95 Wis. 482, 485, 70 N. W. 671; Kreider v. Wis. River P. & P. Co. 110 Wis. 645, 656, 657, 86 N. W. 662. See, also, Klatt v. N. C. Foster L. Co. 97 Wis. 641, 646, 73 N. W. 565; Thompson v. Edward P. Allis Co. 89 Wis. 523, 525, 528, 62 N. W. 527; Thompson v. Johnston Bros. Co. 86 Wis. 576, 582, 57 N. W. 298. In the case at bar the shaft, with the set-screw thereon projecting an inch and a quarter, as described in the foregoing statement, making 400 revolutions per minute, was only four and one-half feet above the floor on which the plaintiff’s ordinary duties required her to work under that revolving shaft. We find no error in submitting to the jury the questions mentioned in the portions of the charge quoted.

5. Counsel for the defendant contend that the revolving shaft, with the set-screw thereon, is not included in the word “shafting,” and hence was not required by the statute quoted to be “guarded or fenced,” even if it was “so located as to be dangerous to employees in the discharge of their duty.” The title of the original act above cited is: “An act to regulate factories, workshops and other places of employment.” The head of the section is, in part: “Safeguards for Machinery,” etc. The words employed in the section are general and not specific. The obvious purpose .of the section is to require “the owner or manager of every place where persons are employed to perform labor,” therein referred to, to protect such employees by properly safeguarding them against the action of any of the things therein named, when “so located as to be dangerous to employees in the discharge of their duty.” Of course, the requirement of the section is not to be extended by construction beyond the meaning of the language employed. 2 Lewis’s Suth. St-at Const. (2d ed.) § 589. The general purpose of the statute, however, may be considered in construing, such language. Id. § 590. It is there said:

“In statutes the sense signified is the law. The letter is but its servant or its vehicle.” “Where the intent of the act is manifest, particular words may have an effect quite beyond their natural signification in aid of that intent.”

The word shafting is defined by the Standard Dictionary:

“A system of stout rods or shafts, usually cylindrical, mounted in bearings, and serving to carry pulleys, gear wheels, or the like, for communicating power, as from a motor to machines. . . . Flexible shafting — a device made up of advancing spiral wire coils, serving to transmit rotary motion around corners, etc., to portable machinery.”

The definitions given in the Century Dictionary are quite similar, and define “shafting” as the system of shafts which connects machinery with the prime mover, and through which motion is communicated to the former by the latter.” In the case at bar the power or motion was communicated to the slitters from the shaft to which they were attached by means of set-screws. This court has inferentially, if hot directly, spoken on the subject. Thus it has been held:

“In ah action by an employee for an injury alleged to have been caused by the negligence of the employer in not covering or guarding his machinery, the question whether” the statute quoted “required it to be covered or guarded depends upon whether it was 'so located as to be dangerous to employees when engaged in their ordinary duties,’ and that is a question of fact for the jury.” Guinard v. Knapp-Stout & Co. Co. 95 Wis. 482, 484, 485, 70 N. W. 671.

In that case the defendant requested the trial “court to instruct the jury that no statute law in this state required the defendant to cover or guard the set-screw on which the plaintiff was caught,” but the court refused to give such instruction, and this court held that such refusal was not error. In that case the plaintiff “was oiling a rapidly revolving shaft at the time of the injury, and his coat sleeve was caught in a set-screw which projected from the collar upon the shaft,” and he sustained serious injuries. There was no guard or covering for the shaft or set-screws in that case. S. C. 90 Wis. 123, 125, 62 N. W. 625. In a later case.it was held that the question whether, under the statute quoted, “an employer is negligent in failing to guard a set-screw on a paper winder projecting nine sixteenths of an inch above the surface is for the jury.” Kreider v. Wis. River P. & P. Co. 110 Wis. 645, 648, 649, 656, 657, 86 N. W. 662. In that case a collar at the end of tbe shaft was held in place and kept tight by means of a “set-screw with a square head, . . . with threads upon it, passing through the collar and against the shaft, which projected nine sixteenths of an inch above the surface of the collar.” While the shaft was in motion the plaintiff’s clothing was caught by the shaft and set-screw and he was badly injured. In the opinion of the court in that case it is said:

“We cannot hold as a matter of law that the defendant was not guilty of negligence by reason of such projecting setscrew being unguarded.”

See, also, Thompson v. Johnston Bros. Co. 86 Wis. 676, 57 N. W. 298, where the location of the steel cord and check lines was such as to be dangerous to the operator of the elevator. We cannot hold as a matter of law that the defendant was not guilty of negligence by reason of such projecting setscrew being unguarded.

6. Nor do we perceive any error in permitting the jury to consider, in connection with other evidence in the case, the fact that some time prior to the injury a bar or girth, located about nine inches below the slitter shaft, at the place where the plaintiff afterwards was required to work, had been taken out, and the purpose of placing it there and the reasons for taking it out. It related to the conduct of the defendant prior to the injury in respect to the place where the injury occurred. It may have had some bearing upon the question of negligence submitted to the jury by the third question of the special verdict.

7. The substance of the answer of the jury to the fourth question submitted is set forth in the foregoing statement. It is quite lengthy and need not be here repeated. Counsel excepted to the portions of the charge in submitting that question to the jury to the effect that it is the duty of an employer to provide a safe place for his employees to work, and in doing this he is only required to exercisé ordinary care and prudence — that is, such care and prudence as the great mass of men ordinarily exercise under the same or similar circumstances; that in answering that question they were called upon to determine whether or not, from the facts and circumstances in evidence, a person of ordinary prudence and intelligence, circumstanced as the officers of the defendant were at the time, ought reasonably to have foreseen that to leave this set-screw in the condition which it was in, and located as it was, might probably cause personal injury of some kind to some employee while in the discharge of his or her duty. There is no good ground for objection to any portion of such charge. Certainly nothing inconsistent with the ruling of this court in the recent case upon which counsel seem to rely. Howard v. Beldenville L. Co. 129 Wis. 98, 114, 108 N. W. 48. At this point in the charge the trial court amended the fourth question submitted to the jury by adding at the beginning thereof these words: “If you answer the foregoing question [3] 'Yes,’ then answer this.” We perceive no abuse of discretion in making such addition to the question. Besides, if it had any effect upon the jury, it would seem to have been favorable to the defendant, since they were told by such addition, in effect, that if they answered the third question in the negative then they need not answer the fourth question at all. No other portion of the lengthy charge under that fourth question is excepted to, and portions of it are quite favorable to the defendant.

8. On the former appeal it was held that the questions of the plaintiff’s assumption of risk and contributory negligence were questions of fact to be determined by the jury. Van de Bogart v. Marinette & M. P. Co. 127 Wis. 104, 108, 110, 106 N. W. 805. This is referred to by counsel; and it is conceded that the evidence on the last trial was, upon most points, the same as on the first, but that in one particular it goes a little further by proof on the part of the defendant that some of the girls employed in the mill used a “cutter stick,” a little plain stick like a rule, about eighteen inches long. The purpose of sucb cutter stick, it is said, was primarily to use in laying off sheets of paper, but it was frequently used by the girls to reach up and knock down shavings when the machine was on rolls. It was furnished at their request by the men in the factory. There is evidence tending to prove that a little while alter the plaintiff was so employed she was shown such cutter stick and told that when the shavings got up too high to knock them down with the cutter stick. This, apparently, was to save the fingers from being caught by the slitter. There does not appear to have been any requirement or general custom to so use the cutter stick to knock'down the shavings. It is undisputed that the plaintiff had no cutter stick at the time she was injured. She was not injured by the slitter, but by her hair being caught by the set-screw as described. The plaintiff testified to the effect that at the time of the injury she knew nothing about the setscrew and had never been warned in any way in respect to the same. The set-screw was revolving 400 times a minute only four and one-half feet above the floor. We cannot say as a matter of law that the case should have been taken from the jury.

9. Exceptions are taken because, in charging the jury on the question of contributory negligence submitted to them by the fifth and sixth questions of the special verdict, they were told that “by ordinary care” on the part of the plaintiff was “meant such care as the great mass of girls of her age ordinarily exercise under the same or similar circumstances.” They were also told that it was “the duty of an employed to use ordinary care — that is, such care as the great mass of persons ordinarily use under the same or similar circumstances — to discover, observe, and appreciate such dangers as attend the work they are employed to perform and to avoid all known dangers and such as may be known or ascertained by the exercise of ordinary care.” They were also told that the plaintiff, “being a minor, would not be held to the same degree of care as an adult-, but was bound to exercise such, care in this regard as the great mass of girls of her age would ordinarily exercise under the same or similar circumstances.” Such instructions seem to be in harmony with the repeated rulings of this court. Thus, in Collins v. Janesville, 107 Wis. 440, 83 N. W. 695, it was said by my Brother WiNsnow that “the test is such care as would be exercised by ordinarily prudent and careful children, or the great mass of children of her age, under similar circumstances.” Warden v. Miller, 112 Wis. 67, 72, 73, 87 N. W. 828. Nor do we perceive any error in requiring the jury to determine from the evidence whether or not the plaintiff, “by the exercise of such care and prudence as persons of her age ordinarily exercise under the same or similar circumstances, should have discovered such set-screw, and have understood such danger- as was incident to the presence and location of said set-screw in the condition in which it was in.” Meyer v. Milwaukee E. R. & L. Co. 116 Wis. 336, 340, 93 N. W. 6. The brief of counsel makes no attempt to sustain such exceptions to the charge by reason or the citation of authority, and we perceive no good reason why they should not be. overruled.

10. The only other ground urged for reversal is that the damages are excessive. They are very large, but the injury sustained is very severe. It is enough to say that we do not feel authorized 'to disturb the verdict. We find no reversible error in the record.

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