Horn v. La Crosse Box Co.

Dodge, J. Doubtless if plaintiff, though only a fifteen-year-old boy, knew that there was a rapidly revolving knife in such close proximity to the edge of the lower hopper that his hand was likely to come into contact therewith in attempting to grasp that edge, he must be held to have appreciated the danger, and to have assumed that risk in attempting to do the work, although by express direction of his employer. The court below, in an opinion filed upon a motion to direct a verdict, evidently reached the conclusion that the plaintiff must have known such facts, notwithstanding his positive denials. The only undisputed proof of what plaintiff knew is that, within the twenty-two inch space between the forward feed rollers and the back, were certain knives, and that by means thereof boards pushed in at one end came out at the other smoothed on their surfaces. He testifies he had never seen the knives in place; he only knew of their existence from hav [403] ing seen them leaning against the machine before being pnt in place; and this evidence is not unreasonable, for his duties toward the machine ceased when boards ceased to come through it. Now, from these facts alone, might not a fifteen-year-old boy, with no knowledge or experience of machinery or mechanical processes, be ignorant of the fact that these knives revolved? Is it not reasonably probable that such a person may have conceived that they accomplished the smoothing of the boards substantially by a reversal of the same process, as does the carpenter’s plane, pushed over them? The writer confesses to have had that impression himself as to machine planing until he had an opportunity to examine one of such devices. However absurd it may seem to one who is familiar with the processes and apparatus for manipulating lumber, we are unable to say that it is inconceivable that one not so familiar might never gain a conception of a rapidly revolving and dangerous knife cylinder from the mere fact that knife blades smoothed boards which came through. But even if plaintiff must have gained that conception, as the court below seems to think and as counsel for respondents argue, there are still respects in which it is not beyond the realm of reasonable probability that he may have failed to know of those physical facts from which arose the peril. There is not the slightest evidence that he knew anything of the size of the cylinders, so that he might infer that one of them extended so far below the table as to be near the edge of the hopper that he was required to remove, which was at least four inches below the under surface of the planed boards. Neither is there the slightest evidence that he had any knowledge whether the cylinder which revolved below the surface of the table was near the front end or near the rear end of the machine. If near the front end, it would have been in no dangerous proximity to the place where he put his hands. But, further than this, is the positive testimony of the plaintiff that he had no knowledge that, when the machine stopped by his withdraw [404] ing tbe pressure from tbe main belt, tbe knives did not also-stop; and there is nothing in tbe evidence to indicate that this fact was in any wise obvious, or even apparent. Clearly, if tbe knives were stationary, be incurred no peril in performing tbe duty imposed upon him. He bad seen others, without injury, remove this hopper several times daily, but under circumstances of obscurement and diversion of bis attention, such as to prevent any very close observation of bow they went about it. He received direction from bis superior to do tbe work, and be bad a right to suppose that be would not be assigned to a service involving imminent peril without some warning of tbe latter fact. In weighing all these circumstances, it must also be remembered that plaintiff was a boy, and not a mature man; that bis care or negligence is to be measured by tbe conduct of tbe great mass of mankind, under-similar circumstances; and that bis immaturity is an important one of those circumstances. Tbe jury might well consider, consistent with due care in him, a measure of inadvertence or want of reflection which would be repugnant to such conclusion in case of an adult. From all these considerations, we are convinced that tbe court below could not properly bold that tbe plaintiff’s evidence that be was ignorant of tbe danger was wholly incredible, nor that no reasonable miiid could absolve him from negligence in attempting, to do that which be bad so often seen done by others safely. Tbe trial court seems also to have been of tbe opinion that negligence on tbe part of tbe defendant was not proved, on tbe ground that Joosten, tbe superintendent, bad no reason to suppose that plaintiff would immediately go to this hopper and attempt to remove it without giving time for tbe knives to stop their revolution. This ignores two considerations: First, that Mr. Joosten bad no reason to suppose that the-plaintiff, with bis known youth and inexperience, bad any knowledge of tbe occult and bidden devices and conditions which made an immediate attempt to remove tbe hopper dan [405] gerous; but also it ignores tbe testimony — disputed, it is true, but still proper to be considered by tbe jury — tbat be imperatively commanded plaintiff to do tbe very thing wbicb be did. These views are conclusive against tbe contention of tbe respondent Joosten, who, having authority over him, expressly directed plaintiff to empty this hopper. It is, however, claimed tbat tbe defendant box company is not thereby rendered liable, because J oosten was a co-employee with tbe plaintiff. Tbe law governing this question is well settled by tbe .cases respondents cite: Klochinski v. Shores L. Co. 93 Wis. 417, 67 N. W. 934; Okonski v. Pennsylvania & O. F. Co. 114 Wis. 448, 90 N. W. 429; Baumann v. C. Reiss Coal Co. 118 Wis. 330, 95 N. W. 139. Whether an act is tbat of a fellow-servant or a vice-principal, depends not on tbe grade or position of tbe person doing it, but on tbe character of the act. Tbat J oosten was general manager is by no means conclusive. Doubtless when be undertook to feed tbe planer/ be acted as a fellow-servant, but when be acted in bis capacity as manager in assigning employees to their respective duties be was vice-principal. Now, it appears tbat it was not a function of tbe feeder of tbe planer to give directions to plaintiff or any one else to empty this hopper. J oosten himself, while denying tbat be instructed plaintiff to do this work, says be went to direct one Miller, a regular machine operator, to do it, thus indicating tbat be was exercising bis power of command. We cannot agree with counsel tbat tbe jury might not have found tbat, in assigning plaintiff to this dangerous duty, bis act was in the capacity of vice-principal. We conclu.de tbat tbe case should have gone to tbe jury, and tbat error was committed in directing a verdict. By the Gowrt. — Judgment reversed, and cause remanded for a new trial.