Harrod v. Stout-Greer Lumber Co.

Hart, J. (after stating the facts). In the case of Hazen v. West Superior Lumber Co., (Wis.) 64 N. W. 857, where the employee was accidentally injured while operating precisely the same kind of a machine, the court held as a matter of law that the master was not liable. ' There the saw was partially covered with loose boards to prevent the saw dust from flying in the face of the operator. The court said: “The rapidly revolving saws were there in plain sight, where the plaintiff could not but see them, and he knew perfectly well, without any instruction or information that if he fell upon them, or came in contact with them, he would certainly be seriously and perhaps fatally injured. There was no possible chance of his 'being deceived, or for mis judgment on his part in that respect. The result would be inevitable, and in no sense a matter of judgment or opinion.” Continuing, the court said: “It was just as plain to him as to his employer that such an accident might occur in the course of his employment.” , In the present case the saw was entirely covered with, a wooden box, which, if properly secured to the machine, would have afforded protection to the operator in leaning his arm upon it. The danger was hidden, and' there was nothing to warn plaintiff that it was not' securely fastened. For the reason that the alleged defect was hidden or secret, the present case may be also differentiated from the case of Schiefelbein v. Badger Paper Co. (Wis.) 77 N. W. 742. There was nothing to deceive the operator in that case. The machine ir question was used for the manufacture of paper. The operator was directed to clean a screen at the bottom of a hopper through which was fed pulp by means of suction. There was a revolving fan in a drum, which carried off the air sucked from the machine, and an opening in the top' of the drum allowed the air to escape. It was several feet higher than the top of the hopper, and a foot distant. The opening was ordinarily covered with a wire screen: The servant had to stand in the hopper to do his work, and rested his hand on the .edge of the opening, and when he arose to an erect position his fingers were tom off by the fan. There the opening was in plain sight. It was obvious to a person of ordinary intelligence that a slight weight would cause the wire screen to sag, and that the instant it came in contact- with the rapidly revolving fan it would be cut, and thris expose his hand to- the danger. There the element of hiddenness 'or deceptiveness of the danger was wanting, and in the case at bar it is present. It is not a question of whether or not the master owed the servant the duty of guarding the saws with a covering, but, having elected to do so, can it be said as a matter of law that there was no negligence in furnishing a covering apparently secure but in fact with a hidden defect? We think not. The fact that the saw was covered with 'a wooden box, apparently secure, might have had a tendency to lead plaintiff to believe that the guard would protect him, and thus cause him to pay less attention to the real danger. At least, it should have been left to the jury to say whether, from all the attendant circumstances, negligence was not inferable. For the error in giving a peremptory instruction for defendant, the judgment is reversed, and the cause remanded for a new trial.