Fleming v. Northern Tissue Paper Mill

— 166 — Tlie following opinion was filed January 28, 1908: MARSHALL, J. Did tbe court err in bolding tbat tbe evidence was not sufficient to support tbe answer of tbe jury to tbe third question? Each of six apparently disinterested and credible witnesses testified tbat be worked at tbe cutter machine before appellant was injured and tbat occasionally tbe knife made a second downward movement with one pressure of tbe lever. Some of the witnesses testified tbat, at times, tbe knife would make more than a second such movement. Others testified tbat upon tbe machine so operating,, some readjustment was made and then tbat it ran all right, and still others testified tbat after making one second downward movement it was liable to' run regular as before without any readjustment. Tbe testimony of David Robinson is a fair sample of tbat of tbe other witnesses. It is in substance as follows: I worked at the paper-cutter machine before Fleming was injured. Tbe knife came down a second time more than once while I worked with tbe machine. I should say it did three times. Tbe second drop was not in response to a second pressure upon tbe lever. Arthur Howarth testified that be worked with tbe machine and tbat the knife would occasionally make a second downward movement; sometimes once, twice or three times in succession, usually in tbe morning. Tbat it did so sometimes on two or three occasions in a week. Oliver Latour testified substantially tbe same way. He-said tbat at times tbe knife would repeat more than once in response to one pressure upon tbe lever. Tbat it would go-down a second or third time, stopping on tbe last occasion before it got clear down, and that lie spoke to J ames Salters, who was the superintendent, about it. There was a large amount of tbe class of testimony indicated in connection with tbe evidence of appellant tbat bis. — 167 — injury was caused by a second unexpected downward movement of tbe knife and evidence conflicting tberewitb. Tbe evidence as a whole was uncontroverted tbat tbe abnormal movement of tbe knife testified to by appellant, if it occurred, happened under the same conditions as those said to have occurred prior to tbe accident. It must be conceded tbat if tbe evidence of this large number of witnesses is credible, a strong case was made tbat tbe cutter knife during all tbe time tbe machine was used in tbe mill, covering a period of some four years, was accustomed to operate as it did' when appellant was injured. Tbe upshot of tbe matter is tbat six, at least, apparently fair witnesses probably committed perjury or there was room in tbe evidence for tbe jury’s answer to tbe third question. Tbe trial judge met tbe situation stated, as indicated in the history of tbe case, by bolding tbat-since there was no evidence of any specific defect in the machine to which tbe abnormal movements of tbe knife could be attributed, and it appeared to be physically impossible for such knife to make such a second or third downward .movement as tbe witnesses testified occurred, their testimony was not worthy of belief; tbat tbe same was contrary to “nature’s unchanging and unchangeable laws and tbe unvarying and invariable principles of mechanics,” and so could not be true. The judge bad very superior advantages, it must be admitted, for determining whether tbe witnesses testified to tbe truth. He saw tbe machine and its mode of operating and thus bad the best opportunity tbat could well be afforded for fully understanding tbe evidence, and in tbe light thereof be reached tbe conclusion tbat upon tbe shaft operating tbe cutter knife making one complete revolution, tbe lever, which was pressed down to start it in motion, would necessarily be thrown up-, positively causing tbe clutch to slide away from tbe shell, when, instantly, tbe steel band would, necessarily, cease to engage tbe friction and tbe brake would — 168 — be set, compelling the knife to remain motionless at its highest point from the cutter table, where it would necessarily remain till the clutch was again pushed against the revolving shell by another downward movement of the level*. After giving full weight, as we must, to the circumstance that the judge had the superior advantage mentioned and the rule that in such a situation a trial judge’s conclusion should not be disturbed except upon its appearing to be clearly wrong (Powell v. Ashland I. & S. Co. 98 Wis. 35, 13 N. W. 573; Nolan v. Kroening, 130 Wis. 79, 109 N. W. 963), it is the opinion of the court that the very large amount of evidence from the mouths of witnesses to the effect that the cutter machine did in fact operate exactly as the jury found, is not wholly impeached. , True, if the mechanism of the machine was such as to render the abnormal movement of the knife claimed to have happened impossible, then the testimony of any number of witnesses that it did make such a movement would not warrant the jury’s finding. True, also1, ordinarily testimony that a machine made an unexpected movement which it could not have made if properly adjusted and in a proper state of repair, is unworthy of belief in the face of a clear case that the machine uniformly before and after the alleged unexpected movement, without anything being done to change it in any way, ran all right and there was no discoverable defect therein. Vorbrich v. Geuder & P. Mfg. Co. 96 Wis. 277, 71 N. W. 434; Chybowshi v. Bucyrus Co. 127 Wis. 332, 106 N. W. 833; Dingley v. Star K. Co. 134 N. Y. 552, 32 N. E. 35; Redmond v. Delta L. Co. 96 Mich. 545, 55 N. W. 1004. It is to be noted that in all, or substantially all, cases of the character of those cited, there was but one or a few unexpected or abnormal movements claimed to' have occurred, one happening at the time of the accident, and the occurrence itself was relied upon to show imperfection in original construction, or some want of repair of the appa — 169 — ratus, the doctrine res ipsa loquitur being invoked. However, it must be confessed that ordinarily a physical situation which would unquestionably impeach the evidence of one witness would likewise impeach evidence of the same character of any number of witnesses. It is nevertheless true that under some circumstances what might appear to one impossible, supported by the testimony of a single interested witness, as was the case in most of the authorities referred to and others of like character, might not so appear upon an .investigation stimulated by the testimony of so large a number of apparently disinterested witnesses as to render it at least next to impossible that they all testified falsely. Facing the testimony of the numerous witnesses here as to what did in fact occur’, not once or twice only, but many times during a period of years, after the most careful consideration thereof and study of the whole situation and with due regard to the decision of the learned circuit judge, the opinion has been reached by the court that the abnormal movements of the machine claimed to have happened may have occurred. The witnesses could not have been mistaken. They testified to the truth or. they individually knowingly testified falsely. The machine was obviously of a somewhat complicated character. The most accurate adjustment of many parts of many kinds was required to produce instant and certain operation of the entire combination and bring about, under all conditions of work, the particular result designed and none other. The jury saw the apparatus. They had all the facilities which the circuit judge had for discovering the truth and were probably quite as capable as he was of determining whether it was possible for the machine to repeat as. claimed. In submitting the second question the learned circuit judge so fenced it about as to center the thought of the jury upon the precise point of whether it was possible for tire machine, assuming that it was in perfect condition, by rea — 170 — son of some interference operating for an instant only, to run regular up to such instant and then make an abnormal movement as claimed, and immediately thereafter run regular again without anything being done to remedy the interference, except such as might occur automatically. To make it doubly sure that the dominant question would not be lost sight of, they were instructed as to the third question that in case of an affirmative answer to the second they would necessarily have decided that it was within reasonable probability that the machine might have operated as claimed by the various witnesses. In that situation the jury decided that the evidence of such witnesses was credible and that what they claimed was the truth to a reasonable certainty. Under all the circumstances it is the opinion of the court, as indicated, that such dominant influence cannot well be given the decision of the circuit judge on the question of fact as to override the decision of the jury. Within the rule of Powell v. Ashland I. & S. Co. 98 Wis. 35, 73 N. W. 573, and similar cases, it is considered that the former is clearly wrong. Though the machine was in proper condition, and when operated merely to exhibit its movements, no work being done, it would run regular with absolute certainty, under working conditions it might, within reasonable probabilities, occasionally, because of being affected by dirt or want of oil or by being fouled with dirt and oil forming a sticky substance, or from some other interference, repeat the motion of the knife as claimed. It is not considered that in order to come to such conclusion it is necessary to reach a decision as to there having been any specific défeet in the machine, discoverable by inspection, or that there was any defect in the apparatus, strictly speaking. The case was submitted to the jury upon the theory that if there were any inherent infirmity in the apparatus rendering-it liable to habitually, so to speak, not necessarily frequently, but occasionally, under working conditions, make — 171 — the dangerous abnormal movements testified to,- that warranted an affirmative answer to the third question. We approve of such submission and hold that the result should not have been disturbed upon the ground of impossibility of the alleged occurrences having happened. In reaching the foregoing conclusion we have not overlooked the direct evidence that the machine could not have operated as respondent's witnesses claimed and other evidence tending to show that it did not so operate. Such conclusion does not reach the question of whether, had the court set the verdict aside as contrary to the weight of the evidence and granted a new trial, the ruling could properly be disturbed. That question is not here, since it has not yet been closed in the court below unless by permanent displacement by the granting of respondent’s primary motion. That matter we will refer to later. Respondent’s counsel excepted to the refusal to' change the answer of the jury to the second question. That exception is relied upon in support of the judgment. If the answer should have been changed, as requested, then the judgment is right irrespective of any other question in the case. Such exception is grounded on the reason given by the court to support the ruling as to the third question, which we have condemned. The fatal infirmity in the ruling as to the third question is likewise operative against respondent’s exception as to the ruling respecting the second question. We have not been able to understand how the answer to the second question, based as it was, as the jury understood the case, upon the theory that it was within reasonable probabilities that the knife repeated, as claimed, could logically have been allowed to stand while the answer to the third question, based upon the same support, was changed,- making the two answers in the perfected verdict opposed to each other. There can be no mistake but that the answer to the second — 172 — question was made to turn with, the jury, as we have indicated. They were in effect told that an answer in the affirmative to the second question would justify, if it did not require, a like answer to the third question, as will he seen by referring to the instructions as to the former in connection with those as to- the latter. Here is the language first used. Its meaning is unmistakable: “But if you are satisfied from the whole testimony in the case that it was possible for the machine to- be in that condition to work all right immediately before, and again immediately after, the time in question, and because of some temporary condition existing at the moment, and then ceased to exist before the next push of the lever, the machine could work as the plaintiff claims, then it is left a question for you to determine from all the testimony in the case, whether it did so operate, whether the knife did come down a second time, as claimed by the plaintiff at the time he was injured.” Then follows this as to the third question: “You will only reach this question, as I said before, in case you have answered the second question ‘Yes,’ and should you so answer this question, the second question, you will have necessarily found that it was possible that it could so operate.” The learned court reversed the answer to the fifth question by which the jury found that the machine had operated irregularly as to secondary movements of the knife for such length of time that defendant in the exercise of ordinary care should have known it was liable to get in said condition before the plaintiff was injured. That ruling, primarily, went upon the ground that it was called for by the court’s action as to the third question. As such action cannot stand the consequential ruling indicated must fall also. True, the court further raised the question, without deciding it, as to whether the abnormal movements of the knife, if they occurred, were evidence of notice other than to the persons who witnessed them. One such circumstance, or — 173 — several, not attributable to any defect which would become apparent by reasonable inspection, or any defect at all, strictly so called, might not be sufficient to charge the employer with notice of any imperfection in a machine, but an inherent infirmity, rendering the apparatus liable to make unexpected abnormal and dangerous movements, as demonstrated by actual occurrences, commencing with the inception of its use and continuing for a long period, might be sufficient evidence of notice of such infirmity. It is considered that the period might be so long as to so operate as a matter of law. No authority squarely with the situation here is cited to the contrary by respondent’s counsel, and none supporting the proposition, squarely, by appellant’s counsel, nor do we find any case law covering the precise question under the same or similar circumstances. But, an principle, the characteristics of a machine, ordinarily safe, as to dangers peculiar to its use, especially after the same has been in operation for a long period .of time, may reasonably be regarded as within the knowledge of the person charged with the duty to exercise ordinary care for the safety of those employed to attend it. When the proof of notice would be thus circumstantially complete must vary with the facts of each particular situation. As to dangers incident to the use of all machines of the kind the employer would doubtless be chargeable with notice from the start, and as to dangers peculiar to the particular machine, a short period of time or a long period might, according to circumstances, be sufficient. The time might be so short as to leave the employer without notice as a matter of law, and might be so long as to charge him with notice as a matter of law. Ordinarily the question would be one for the ÚWT- It is the opinion of the court that Vorbrich v. Geuder & P. Mfg. Co. 96 Wis. 277, 71 N. W. 434; Carnegie S. Co. v. Byers, 149 Fed. 667, 669, and like cases relied upon by — 174 — respondent’s counsel as slowing that abnormal movements of a machine do not suggest the existence of defects which are hot discoverable by the exercise of ordinary care, do not apply here. As indicated, this case was not submitted to the jury to decide as to whether the machine had such defects, but as to whether, conceding it was perfect in its parts and adjustment, it was of such, a character that, under conditions created by actual work, notwithstanding such attention as was ordinarily given thereto', it might be that it would occasionally make an abnormal movement such as was claimed to have been made, not from any defect strictly so called, not from any want of repair in the ordinary sense, but as indicated, an infirmity inherent in the very nature of the contrivance. Neither does it. seem that Dahlke v. Ill. S. Co. 100 Wis. 431, 76 N. W. 362, and similar cases holding that an employer is not required to inform his servants of special dangers in working with machinery which are liable to exist under conditions not reasonably to be apprehended, apply to this case, except in support of the conclusion we have reached. If the cutter machine did occasionally operate abnormally when in actual service and such occasional abnormal operation was habitual and inherent in the very nature of the contrivance when in service, then the conditions producing such movements were reasonably to- be apprehended. Again, we are unable to see how Walkowski v. P. & G. Consol. Mines, 115 Mich. 629, 73 N. W. 895; Cameron v. N. Y. C. & H. R. R. Co. 145 N. Y. 404, 40 N. E. 1; Cregan v. Manston. 126 N. Y. 568, 27 N. E. 952, and similar cases, support the claim that abnormal operations at times, under working conditions, of an ordinarily perfect machine, such abnormal operation being a characteristic of the contrivance, are not evidence of notice to- an employer using the same, of such characteristic. The cited authorities are to the effect that mere acts of a servant inconsistent with competency, — 175 — happening under such conditions .as to leave no trace behind, which would ordinarily attract the attention of the master, are not sufficient evidence of notice of the incompetency. The rule is familiar. In this connection we are referred to 1 Wigmore, Ev. '§ 252, which recognizes the doctrine that notice of the dangers characteristic of a machine may be held to’ have reached an employer when the danger is such as to be generally known among those who work, or have worked, with it and is of such a nature as to be liable to be talked about, and the employees have been subjected to such danger for a considerable length of time. That fits this case fairly, especially in view of the fact that it is undisputed that the attention of Salters, who was superintendent of the mill some time prior to the accident, was specially called to the characteristics of the machine. The learned counsel for respondent suggest that the notice to Salters is of no importance, because he was not superintendent at the time of the accident. Such circumstance does not seem to at all impair the force of the evidence on the mere question of constructive notice. McDonald v. Fire Asso. 93 Wis. 348, 67 N. W. 719, and-similar cases, cited by counsel at this point, which are to the effect that a principal, in regard to the transaction conducted for him by the agent, is not bound by information which the agent obtained outside his agency, unless the agent has such knowledge in mind at the time of such transaction, do not seem to’ have any application. Manifestly, notice to! a superintendent of characteristics of a machine rendering it specially dangerous would be notice to the principal, and such notice by no means' would lose its efficiency by a change of superintendents. We apprehend the jury found in respondent’s favor as to, actual knowledge upon the theory that there was no such knowledge unless the superintendent conveyed the information he received to some officer of the company, though they — 176 — gave some weight to the evidence in question on the subject of constructive knowledge. It is not considered advisable to pursue this subject into much detail. We hold on principle, as indicated, that serious dangers peculiar to a particular machine, as manifested by occurrences in its operation from time to time; dangers which should, in the exercise of ordinary care, be brought to the attention of an inexperienced person upon his being put to work at such machine, unless the employer is excusably ignorant thereof or of such inexperience, may be so long continued as by their very existence and manifestation to raise a presumption of fact as to notice thereof to such employer. The familiar rule applies to the situation that it is the duty of the master to warn a servant who he knows, or in the exercise of ordinary care ought to know, is inexperienced, as to those dangers to which he will be exposed in the course of his employment, which by reason of such inexperience he is ignorant of and which the master knows, or by the exercise of ordinary care ought to know, exist. Wolski v. Knapp-Stout & Co. Co. 90 Wis. 178, 63 N. W. 87; Dahlke v. Ill. 8. Co. 100 Wis. 431, 16 N. W. 362; 26 Cyc. 1165. The mere fact that the machine in question in any given case is in good repair is not an exception to the rule stated. May v. Smith, 92 Ga. 95, 18 S. E. 360; 4 Thomp. Comm. on Neg. § 4011. A machine may establish a character, so to speak, the same as continuous negligent acts of an employee may do, though they do not produce any observable indication which survives them. Such character with evidence of specific acts is evidence of notice to the employer. Park v. N. Y. C. & H. R. R. Co. 155 N. Y. 215, 49 N. E. 674; 4 Thomp. Comm. on Neg. § 4910, and notes. There is no other infirmity in appellant’s case, so far as we can discover, which can justify the judgment appealed from. The special verdict covered the case so far as the facts — 177 — were controverted. It was undisputed that appellant was ignorant of the liability of the machine to make the dangerous movements which caused his injury. They were of such peculiar character that respondent had no right to assume, in the absence of special knowledge to the contrary, and there was no such knowledge, that appellant knew of the special danger. So there was no question of fact in regard to such matters to go to the jury. Upon the record with the disputed facts settled in appellant’s favor without harmful error, he was entitled to judgment. No other question discussed'in the briefs of counsel need be considered, except tire claim on_the part of respondent’s counsel that in case of a reversal of the judgment, which, as we have seen, is inevitable, their-exceptions and the alternative motions in the court below should be considered on the question of whether a new trial should be ordered or judgment awarded for appellant. It is elementary that a respondent may have the benefit of his exceptions to rulings, in support of a judgment which would, otherwise, yield to appellant’s exceptions. Eespond-ent may also take advantage in support of the judgment of any fatal defect in appellant’s case not required to be brought to the attention of the trial court for a ruling and exception in order to save the point for consideration on appeal. But in the absence of anything of the character mentioned preventing a reversal, respondent is not entitled to the benefit of his exceptions taken in the court below, as on an appeal by him, for the purposes of a new trial as a matter of right, nor is he entitled to have a motion made in the court below but not passed upon considered on appeal. We cannot agree with counsel for appellant that, because-the primary motion made by respondent’s counsel was granted, the alternative motions entirely dropped out of the case. Such a practice might work great injustice. The secondary motions could not considerately have been made — 178 — in any other way than they were made. The effect of the favorable decision on the primary motion was to’ leave it unnecessary, and perhaps impracticable, to pass on the others. The effect of the reversal as to such primary motion is to bring into prominence the others and require them to be passed upon, and necessarily by the court below in the first instance. Doubtless we may properly look into the record sufficiently to discover whether, in any reasonable view of the case, such secondary motions are worthy of consideration, and if not remand the case so as -to end the litigation,' since a new trial is required to follow a reversal here only when necessary. Sec. 3073, Stats. (1898). It is considered, in this case, that justice will be most certainly done in the end by giving the trial court opportunity to decide the questions properly brought to its attention by the motions which it did not pass on, that have not been necessarily indirectly decided on this appeal, and to render judgment or grant a new trial according as the decision as to such motions and what is here said may require. By the Court. — The judgment and order changing the verdict of the jury are reversed, and the cause is remanded for further proceedings according to this opinion. A motion for a rehearing was denied March 31, 1908.