Upthegrove v. Jones & Adams Coal Co.

Cassoday, C. J. Hour errors are assigned upon which we are asked to reverse the judgment in this case. The one particularly relied upon is the refusal of the court to grant a non-suit or direct a verdict in favor of the defendant. This is básed upon the ground that it appears from the undisputed evidence that the plaintiff assumed the risk and was guilty of contributory negligence. . Counsel for the plaintiff insists that that is the only debatable question presented on this appeal. He, moreover, concedes that, if that question is decided adversely to the plaintiff, then that the judgment should be reversed, with directions to dismiss .the complaint. The facts upon which the respective parties base their contentions are presented in the foregoing statement. They need [679] not be here repeated. The age and experience of the plaintiff with the machinery of that kind was such as not to require further instruction than was in fact given as to the danger of getting his hand into the cogwheels while running. In that respect he must be held to the same responsibility as a man of mature years. He testified to the effect that he knew, if he got his hand in this particular gearing, it would be crushed; that, if he got his hand between the two cogwheels, it would be crushed; that he understood that, if he got his hand in the gearing, it would be crashed; that he had seen the defendant’s employees take the gearing apart; that he knew of the existence and of the exact location of this gearing for some time before he was caught in it; that from the place where he stood when he was hurt such gearing could be plainly seen; that he was injured while operating the cold-air valve with a loose wheel on a pin which wheel was three inches in diameter and about six inches above the beveled-geared cogs meshing downward; that the cold-air valve was only used when the injectors would not work; that he had only used it three or four times prior to the injury; that the wheel on this valve was loose, and it was necessary to take it off the nail where it hung and put it onto the pin, and then turn it back and forth; that the engineer had showed him how to work the valve. He necessarily knew that the little wheel was not fastened to the spindle, and was liable to slip off; and he testified that when the wheel came off the pin his hand dropped down'and went into the gearing, and he was injured. True, the plaintiff testified that he did not know that the cogwheels meshed downward, nor just when the cogwheels started. But they were liable to start at any time. “This court has repeatedly held that the true test as to whether a minor has assumed the ordinary risks of his employment, or is guilty of contributory negligence, is not whether he in fact knew and comprehended the danger, but whether, under the circumstances, he ought to have known and comprehended such danger. Luebke v. Berlin M. Works, [680] 88 Wis. 442, 60 N. W. 711; Craven v. Smith, 89 Wis. 126, 61 N. W. 317; Casey v. C., St. P., M. & O. R. Co. 90 Wis. 113, 62 N. W. 624; Herold v. Pfister, 92 Wis. 417, 66 N. W. 355; Klatt v. N. C. Foster L. Co. 92 Wis. 622, 627, 66 N. W. 791; Roth v. S. E. Barrett Mfg. Co. 96 Wis. 615, 71 N. W. 1034; Larson v. Knapp, Stout & Co. Co. 98 Wis. 178, 73 N. W. 992. It bas also been repeatedly beld: “Where it appears from the undisputed evidence that the defect or danger is open and obvious, and such as, under the circumstances, ought to have been known and comprehended by the plaintiff, then he will be held to have assumed the risk as a matter of law.” Helmke v. Thilmany, 107 Wis. 216, 224, 83 N. W. 360, 363. See, also, Sladky v. Marinette L. Co. 107 Wis. 250, 261, 263, 83 N. W. 514; Kreider v. Wisconsin River P. & P. Co. 110 Wis. 645, 659, 86 N. W. 662; Muenchow v. Zschetzsche & Son Co. 113 Wis. 8, 88 N. W. 909. After careful consideration we are forced to the conclusion that the admitted facts bring the case within the rale stated. The little wheel was small, but the plaintiff necessarily knew that, unless he resisted the tendency, its weight was sufficient to bear his hand downward while putting it on or taking it off the pin. His failure to exercise ordinary care in that respect was contributory negligence. The view we have thus taken of the case makes it unnecessary to consider other questions presented in the brief of counsel for the defendant. We must hold that the answers to the seventh, eighth, ninth, and tenth questions are contrary to the undisputed evidence, and that the trial court should have granted the motion of the defendant to change the answers to the first three of those questions from the negative to the affirmative, and to change the answer of the tenth question from the affirmative to the negative, and, when so changed, to render judgment thereon in favor of the defendant and against the plaintiff, dismissing the complaint, and for costs. This is in accordance with the repeated rulings of this court. Stafford v. Chippewa Valley [681] E. R. Co. 110 Wis. 331, 362, 85 N. W. 1036, and cases there cited; Zahn v. M. & s. R. Co. 114 Wis. 38, 43, 89 N. W. 889; and cases there cited. By the Court. — The judgment of the circuit court is reversed, and the cause is remanded, with directions to change the verdict as indicated, and, when so changed, enter judgment thereon in favor of the defendant and against the plaintiff, as mentioned. Siebecker, J., took no part.