Glenesky v. Kimberly & Clark Co.

BaeNes, J. A full statement of the undisputed facts in this case has been made, and the conclusion reached by the court obviates any discussion of the evidence. If the master was negligent in furnishing an unsafe machine it was because of failure to so guard it as to prevent the happening of the accident that occurred. No other defect in the appliance furnished is complained of. Notwithstanding the finding of the jury, we think the undisputed testimony shows that the machine was a reasonably safe one, and that the defendant was not negligent in failing to guard it in such a manner as to prevent the accident. The roll moved slowly, making but fifteen or twenty revolutions a minute. It revolved away from the operator. It was forty-seven inches from the top of the platform on which he stood to the top of the roll, and when at work he usually stood twelve or fourteen inches from the roll. The machine itself was fifty-six inches in height. The point of contact between the rolls was about thirty-five inches from the floor. There was not only this barrier fifty-six inches high in front of the operator, but, in order to get caught, his hand must necessarily have followed the roll around to the opposite side from where he was working, further than he could reach. Counsel on both sides concede that the plaintiff could not have reached around the upper roll to the point of contact with the lower one while standing on the platform. It required little force to remove the pulp from the roll, and the space above it was open and unobstructed. It is apparent that the accident could only have happened by the operator’s body coming in contact with the roll, or by his holding onto the same with his hand so that he was lifted off his feet. If he fell against the roll, no explanation is offered [57] as to why he did not push himself off instead of clinging to it. It seems to ns that a master must well-nigh have the gift of prescience to apprehend that there was any likelihood of an accident happening to an operator by being caught between these rolls, and that it would be holding him to an unusual and extraordinary degree of care to say that he was negligent in not having’ the foresight to conceive that such an accident might happen. “The rule requiring the master to furnish his servant with a reasonably safe working place calls only for a working place free from all dangers which a person in the circumstances of the master, in the exercise of ordinary care, ought to know of, and which, under the circumstances, the servant, in the exercise of ordinary care, is not legally chargeable with knowledge of.” Hencke v. Ellis, 110 Wis. 532, 539, 86 N. W. 171; Mueller v. N. W. I. Co. 125 Wis. 326, 330, 104 N. W. 67; Atkinson v. Goodrich T. Co. 60 Wis. 141, 18 N. W. 764; McGowan v. C. & N. W. R. Co. 91 Wis. 147, 64 N. W. 891. TJnder any reasonable application of the foregoing rule the defendant was not negligent in failing to maintain a guard on the machinery in question, and it is evident that the work of the plaintiff would be attended with apparently greater danger when the guard was on than when it was off. It is equally clear that the defendant was not guilty of negligence in failing to warn the plaintiff of the hazard that produced the injury. “Granted that the danger existed, yet it does not follow there was a duty to instruct in regard to it, unless it was reasonably to be apprehended that the circumstances requisite to set that danger in motion might probably occur. . . .” Dahlhe v. Ill. S. Co. 100 Wis. 431, 434, 76 N. W. 363; Fleming v. Northern T. P. Mill, 135 Wis. 157, 114 N. W. 841. It seems clear to us that the accident was such that the defendant had no reasonable ground to apprehend that it might occur. Besides, the plaintiff operated this machine for a pe58 xiod of two -months, and in the exercise of ordinary care he should have known that if he fell against the roll and held it sufficiently tight to lift his body from the ground it would carry him over. He must also have known that if his fingers came in contact with the rolls they would be bruised. These were the only facts in reference to which the master could have instructed him. The trial court should have directed a verdict in the defendant’s favor. Failing to do so, the defendant’s motion to change the answers returned by the jury to the second, third, fourth, and fifth questions in the special verdict should have been granted, and judgment entered in defendant’s favor on the verdict as corrected. By the Court. — The judgment of the circuit court is reversed, and the cause is remanded with directions to enter judgment in favor of the defendant dismissing the plaintiff’s complaint. KbRWIN, J., took no part.