Peterson v. Sherry Lumber Co.

Pinney, J. 1. Tbe question to be considered is whether there was sufficient evidence to go to the jury to justify a finding that the negligence of the defendant caused the death of the plaintiffs intestate, and whether, upon the entire case, there was sufficient evidence to sustain a verdict for the plaintiff. It is well settled that a mere scintilla of evidence or mere surmise of negligence on the part of the defendant would not be sufficient, and that the jury are not to be permitted to guess at or conjecture a result, and thus arrive at a verdict that must be founded on and sustained by competent evidence; and it is the duty of the court to grant a peremptory instruction or nonsuit where the state of .the evidence is such that it can clearly see that it would be the duty of the court to set aside the verdict if rendered in favor of the party having the burden of proof. Thomp. Trials, §§ 2241, 2249, and cases cited. Negligence is an inference to be drawn from the facts and circumstances disclosed by the evidence, and “ when such facts and circumstances, though undisputed, are ambiguous and of such a nature that reasonable men, unaffected by bias or prejudice, may fairly disagree as to the inference or conclusion to be drawn from them, the question should be submitted to the jury; but when the facts and circumstances are not ambiguous, and there is no room for two honest and apparently reasonable conclusions, then the judge may take the case from the jury.”1 But, in order to justify this course, the evidence or want of evidence must be clear and decisive. Kaples v. Orth, 61 Wis. 533, and cases cited; Valin v. M. & N. R. Co. 82 Wis. 6; Hart v. West Side R. Co. 86 Wis. 484. Peterson, the deceased, was an experienced operative, and had for some three years been accustomed to the duties of edger which the defendant hired him to perform. These duties involved skill, experience, and judgment, and a. knowledge and familiarity with the machine with which he was working, and these it is presumed he possessed. He had — 93 — charge or control of his machine, and it seems to have been his duty to watch and observe it and see whether it was doing its work properly. He was the head sawyer at this machine. By entering upon his employment as an edger, he assumed all the usual and ordinary risks incident to his employment; and if injured by reason of an alleged defect in the machine or an element of danger not usual or incident to his employment, which he either knew or ought reasonably to have known and appreciated, and saw fit, not-wdthstanding, to continue in his employment, he must be held to have assumed such extraordinary risks as well as the ordinary ones, and no ground of action would accrue in case he was injured in consequence. Particularly is this the case where the defect or danger is open and obvious, and although it exists in consequence of the negligence or default of the employer. All this is in accordance with numerous adjudged cases, and is really beyond dispute. Dorsey v. Phillips & C. Const. Co. 42 Wis. 583; Naylor v. C. & N. W. R. Co. 53 Wis. 662; Ballou v. C. & N. W. R. Co. 54 Wis. 257; Haley v. Jump River L. Co. 81 Wis. 421, 426; Goltz v. M., L. S. & W. R. Co. 76 Wis. 136; Luebke v. Berlin M. Works, 88 Wis. 448; Showalter v. Fairbanks, Morse & Co. 88 Wis. 381; Johnson v. Ashland W. Co. 77 Wis. 51; Paule v. Florence M. Co. 80 Wis. 350. Where the defect or danger is open and obvious, knowledge of it on the part of the employee will be presumed. In such cases the employer may be said to be guilty of negligence in keeping his premises or machinery in a dangerous condition, and that the servant is guilty of negligence in accepting the service or continuing in it, and it becomes equivalent to contributory negligence on his part. Whittaker’s Smith, Keg. 398. An assumption of risk is in fact regarded as a form of contributory negligence. Darcey v. Farmers’ L. Co. 87 Wis. 249. Whatever of danger or peril there was in operating the — 94 — mill in consequence of the presence of steam in it to an unusual and extraordinary degree, and by reason of a want of proper provision for conveying it away and of the leak in the dome of the boiler, was open and obvious to the deceased, and he must be held to have assumed the risk of the' consequent danger and injury. The elements of danger pressed upon our attention are the inability of the deceased,, and others working around the machinery, to see so as to-perform their work in safety, and the condensation and freezing of the large quantity of steam, rendering the machinery and rollers slippery and unfitting them, it may be, to perform their proper functions. It is certain that the deceased not only could not fail to observe the facts, but the' evidence is that he complained of his inability to see so as to-properly perform his work, and not that the presence of the steam was an element of danger. His past experience, perhaps, led him to underestimate the danger that seems to-have been obvious and great. It appears that the presence' of steam at times in considerable quantities in a sawmill is-not an .unusual occurrence, but it is evident that it was unsafe and imprudent to operate the mill in question under the conditions then existing, when the wind was in a particular direction so as to fill the mill with steam from the incomplete exhaust pipe. He had worked in the mill long enough to know what danger he was encountering, and he-made no complaint or protest, but continued in his employment. The effect of the condensation and freezing of steam on the machinery and rollers was equally open to his observation, and so within his knowledge. He must be held to have fully understood the operations of the simplest laws of nature,— that in cold weather condensed steam will freeze- and make objects on which it falls slippery. His presumed knowledge from very considerable experience in the use of such machines could not but suggest the effect mentioned upon the machinery and rollers, and the danger likely to — 95 — occur from it. He knew and understood all these things a& well and perhaps better than the superintendent or foreman. So, too, in respect to improper location of the iron band or guard placed above the saws to prevent fragments of bark and wood being thrown back, and for additional precaution against boards coming back. He must have understood its uses, and he could not have failed to observe this defect as soon as he looked at the saws; but it does not appear that he made any complaint or effort to have the defect in the location of the band or guard corrected. The evidence shows that it is a rare occurrence that a board saws back and rides-the saw, and it is claimed that fault ought not to be imputed to him for that reason; but, if not to him, why to the defendant? It is a question of negligence as to both. The deceased, on account of his experience in his particular employment, may be properly regarded as a skilled workman, and as having possessed the knowledge and experience incident to his employment. Upon the plain and uncontradicted evidence, we think the deceased must be held to have waived the negligence of the defendant arising from the causes-stated, and to have assumed the risk as to their natural and obvious consequences. It would seem that the situation would have suggested to a man of ordinary intelligence that the operation of the mill under such circumstances was fraught with danger, not only by reason of his inability to properly work around the machinery, but from the consequences likely to ensue to him by reason of the same inability on the part of others working in immediate connection with him. A casual glance at the situation on the morning of the accident was sufficient, to admonish the deceased of the dangers confronting him in attempting to go on in his employment under then existing-conditions. It was the duty of the employer to take prompt measures to render the operation of the mill reasonably safe and convenient, and it was the -right and duty of the de — 96 — ceased to consult bis personal safety, for if he chose with knowledge, or the means of knowledge, of plain and obvious dangers, to continue to work, he certainly must be held to have assumed the risk of the consequences. The master is bound to observe and perform his duty to his servant, but he is not an insurer of his safety. The servant in the pres-* ent case was bound to observe and take heed of his surroundings, and to think and consider before exposing himself to menacing and obvious perils arising from the use and operation of the machinery of the mill by himself and fellow-servants, under the conditions disclosed in the testimony, and which the situation would readily suggest to a person of common intelligence. 2. There seems to be a failure of proof to show that the negligence and default relied on were the real and efficient cause of the death of the plaintiff’s intestate. There is evidence to show that the board would not havé gone back unless it got pinched on the saw; that this would occur if the board, before entirely passing the saws, was swung around so that it cramped on the saw; and also that a board at times will get cramped on the saw and go back, because the saw in its operations may spring to one side and then spring back to its normal position. If the power of the pressure and fluted rollers failed to carry the board through, so that it stopped, they would not have any tendency to force it back against the saws, as they revolve from, and so as to carry the board away from, the saws, unless some one meddled with the board, or some force intervened to turn it aside so that it would cramp on the saw and be sawed back until it rode the saw. There is nothing in the evidence, so far as we are able to discover, tending to show that the pressure .-and fluted rollers, on the morning in question, or when the accident occurred, had failed in any degree to perform their proper functions, and no evidence even to show that boards ■came through them slower than usual. On the contrary, the’ — 97 — ■evidence is that the board came along in the usual way; that ■a sudden crack was heard, and the hoard quickly went back. And there is evidence which strongly tends to show that at that time the tail sawyer was endeavoring to put back the rear roller which he had taken out, and had one end in the proper socket, and was busy endeavoring to put the other end in when the board came upon and over the roller for a ■distance of about two feet, and, in consequence, was turned ■or swerved to one side, causing a cramping or pinching of the board against the saw, and that then, in consequence, it went immediately back with the fatal result. The evidence of the man working at the table with the tail sawyer is quite clear and direct, and the evidence of the tail sawyer is uncertain and confused, and does not, on the whole, deny this to have been the case. Although he says he did not touch the board, and did nothing to make it go back, and did not neglect his duties, he says he saw the board coming down; that he did not see how far it came, and did not see it going back; that he did not know whether he got the roller in before the board went back or not; that he had not been sure in his own mind but he had the roller up and the board came up and slid over; “ have tried to think it over a good deal since the accident; I don’t know how it was;” that when he saw the board coming he “turned around to pick up this roller to put it in place; didn’t see the board after that; ” that when he heard the crack he had the roller in at one end, and it was not very far from the other. The theory that the board went back for the reason that the pressure rollers did not properly perform their office, is at most conjectural, and this evidence, going to show an adequate cause occurring at the exact time the board started in its backward course, announced with a sharp crack heard by both witnesses, prevents any fair inference that it went back in consequence of any defect in the machine or any negligence or default of the defendant, relied on. Engebrictsen complained of the — 98 — icy or slippery condition of the rear roller; not that it interfered with the passage of the boards through the machine-to prevent them coming to him, but because they slipped or ran over the rear roller and fell down, simply causing him inconvenience, but putting no one in peril. To remedy this, he removed the roller, and the accident was coincident with the attempt to restore the roller when the board was passing through the machine. "We cannot see that any inference - can be fairly drawn from the slippery condition of this roller, or even of the other two rollers, if such existed, that would justify a finding that it contributed to the accident.- The negligence of the fellow-servant of the deceased would seem to have been the cause of the accident, and, as there was no> sufficient evidence of any negligence on the part of the defendant co-operating at the time with the negligence of such fellow-servant, it is impossible to see how the plaintiff can recover. If the injury was caused by the springing and consequent pinching of the saw, then it was the result of mere accident, against which, so far as appears, no human foresight or vigilance could guard; and the fact that the rear roller was “ a trifle ” higher than the fluted rollers, and that this fact had not hitherto interfered with their efficient action, was manifestly so inconsiderable and trifling that it would not of itself afford ground for more than the merest conjecture that it was in any proper sense the proximate or eificient cause of the accident. For these reasons, we think that the direction of the circuit court to the jury was correct. By the Court.— The judgment of the circuit court is affirmed.