Beyersdorf v. Cream City Sash & Door Co.

The following opinion was filed January 8, 1901: Dodge, J. The situation disclosed by the evidence presented several methods by which plaintiff’s hand might have come in contact with the saws, including at least the possibility of a wholly needless placing of his hand in contact with the saws, within a peril which could not but be obvious to any one who had ever seen a circular saw cut wood. Whether or not the evidence of the situation supplied foundation for anything but a guess or conjecture as to how the injury in fact occurred may perhaps be doubtful, but upon the verdict before us it becomes unnecessary to consider or discuss any theory other than that which has specifically been ■adopted by the jury. If that theory be not the correct one, then it cannot be said that the verdict has negatived a different theory which might involve contributory negligence ■or might be so beyond the range of reasonable expectation that the condition of the machine could not be deemed proximate cause. We had in this case the somewhat unusual advantage of having presented before us on the argument the machine itself, and of opportunity to test the suggestions and theories of counsel thereby. It is quite impossible to express in words at all clearly the result of such observation. Certain physical facts were thereby made obvious, such, for example, as that the space below the south ■end of the overhanging steel guard — under which, on the theory of plaintiff’s counsel, his hand, in contact with the strip of wood, must have passed in order to reach the saw — was not sufficient to allow plaintiff’s hand to pass under it [461] towards the saws if that hand was on top of the strip of wood; for the end of the guard was only, at most, a quarter of an inch higher than the strip itself. That plaintiff’s hand must have been placed on top of the stick if he had hold of it at all results conclusively from the wound, which is squarely across the hánd from little-finger side to thumb side, so that the hand must have been at right angles to the plane of the saws and to the stick passing through them. If the stick were grasped in any other manner, as by seizing the south end of it, the ends of the fingers would have been towards the saws, and the course of any cuts must have been longitudinal, from the ends of the fingers towards the wrist. Again, the infliction of this wound at a place in the hand nearly four inches from the ends of the fingers is rendered impossible at any place above the feed table, even if it could have got within the overhanging guard; for the upright or west side of the feed table was only one and one-half inches west of the easternmost saw, and other complete obstacles to intrusion of the hand above the saws were only one half or three quarters of an inch further west. Besides these facts, it is established, without controversy, that all the portion of the saws above the feed table, except, perhaps, the tips of the teeth at the top of the saws, was occupied by the stick passing through them, so as to render impossible the cutting through of plaintiff’s hand. There could, at most, have occurred only comparatively shallow lacerations from the upper part of the saw, under the conditions which existed. From the foregoing circumstances, and others almost impossible of intelligible description without the machine before the eye, we are forced to the conclusion that the injury to plaintiff’s hand could not have been caused by the portion of the saws above the feed table in the manner described by the ninth question and answer of the special verdict; that such manner of injury was an impossibility, in the light [462] ■of tbe physical facts appearing without dispute. Being so opposed to possibility, the verdict on that subject cannot stand. It is not supported by any credible evidence. Badger v. Janesville C. Mills, 95 Wis. 599, 603; Vorbrich v. Gender & P. Mfg. Co. 96 Wis. 277; Cawley v. La Crosse City R. Co. 101 Wis. 145, 149; O'Brien v. C., St. P., M. & O. R. Co. 102 Wis. 628, 632. Since the jury are thus conclusively wrong as to the particular peril from which the injury resulted, their other findings upon which the judgment rests are vitiated. Their answers to the eighth and ninth questions establish what exposure they had in mind as causing the injury, and exclude the supposition that they had any other. Their finding that defendant was guilty of negligence which was the proximate, natural, and probable cause of the injury must •at once be referred to their previous answers, and constitutes only a finding that defendant was negligent in not guarding against the peril of a backward jerk of the strip •of wood, bringing plaintiff’s hand in contact with that portion of the saws above the feed table. If there were other' perils, as of course there were, and, equally of course, some ■of such other perils caused the injury, the jury has not found that defendant was negligent as to such other perils, nor that its negligence was the proximate cause of the injury. So, also, with reference to plaintiff’s knowledge of perils, instruction as to same, and exercise of care to avoid them, the findings are rendered immaterial. The jury have found he was ignorant, uninstructed, and careful as to a peril which did not cause his injury, but have made no findings on those subjects as to the peril from which he in fact .suffered. So that the verdict fails to establish that defendant was guilty of negligence which injured plaintiff, proximately or at all, or that plaintiff is free from contributory negligence, or that the injury was not the result of mere accident’. Without verdict upon some or all of those issues, judgment for plaintiff cannot stand. [463] Respondent invokes the rule of Cummings v. Nat. F. Co. 60 Wis. 603, 612; Stacy v. M., L. S. & W. R. Co. 85 Wis. 225, 236; and Carroll v. C, B. & N. R. Co. 99 Wis. 399, that the happening of the accident alone suffices to establish defendant’s negligence and liability. In Musbach v. Wis. C. Co. 108 Wis. 57, we pointed out the inapplicability of that rule in the presence of even a reasonable possibility that some other cause than defect in the machine might have caused the injury. Here, as in the Musbaoh, Case, the physical facts and circumstances show the possibility, at least, that plaintiff’s injury came from'the lower part of the saws, below the feed table. Indeed, some of those circumstances seem’hardly consistent with any other theory. The place and direction of the cut across his hand, the volume •of blood found below the feed table, while only scattering spots are found above, and some other circumstances, are difficult to account for otherwise. However the weight of probability may be, only reasonable possibility is necessary to demand consideration of the theory of an injury below the feed table. Whether an injury at that place could occur without negligence on plaintiff’s part, or could have reasonably been expected by defendant to happen in the ordinary performance of plaintiff’s duties, we need not now decide. It is sufficient to say that neither fact appears so clearly as to be matter of law. There is therefore a reasonably possible theory for the injury not necessarily inconsistent with defendant’s due care in equipment and operation of the machine, which fact excludes this case from the rule of the authorities above mentioned. From what we have said, it is obvious that by the answers to the eighth and ninth questions the entire verdict is rendered inconclusive, and insufficient to support any judgment, .and should, upon appellant’s motion, have been set aside. Refusal of that motion was error, for which the judgment must be reversed and a new trial ordered. We deem un [464] necessary discussion of the assignments of detail errors in the course of the trial, as they are of a character very likely to have no relevancy to further proceedings in the cause. By the Court.— Judgment reversed, and cause remanded for a new trial. BaedebN, J., took no part. A motion for a rehearing was denied March 19, 1901.