Stock v. Kern

SiebecKeb, J. Tbe jury found that tbe splitter maebine, as equipped and operated, was not a reasonably safe one for tbe purpose for wbicb it was used; that the speed of the saw, [222] as operated at the time the plaintiff was injured, was so slow as to render it dangerous to the plaintiff, wlm was operating it; that the plaintiff was ignorant of such dangers; and that the defendant failed to instruct or warn him as to the dangers incident to the operation of the machine. The appellant contends that the court erred in refusing to direct a verdict for the defendant, upon the grounds that there was no evidence showing negligence in any of the respects alleged, and that the plaintiff’s injury resulted from open and obvious dangers incident to the operation of the saw in defendant’s business. The evidence shows that the plaintiff was operating the splitter saw, and that after he had worked a little over an hour feeding it he was running a bolt through the saw, when it turned, his hand slipped, came in contact with the running saw, and was injured to the extent above stated. There is evidence that the operation of the machine, as constructed, was attended with dangers to the operator feeding bolts into the saw, but so far as disclosed these dangers existed in a liability that the operator’s hands would come into contact with the revolving saw while he was feeding it as usual. It is manifest that such dangers were incident to the operation of the machine and were open and obvious to any person of ordinary intelligence. The fact that the machine might possibly have been equipped with guides and carriages and thereby have been rendered less dangerous affords no ground for complaint under the circumstances shown, for the reason that the defendant had the right to conduct his business and use this machine as he did, provided he thereby violated no positive law and did not expose his employees to hidden dangers. Where a servant undertakes an employment under such conditions he assumes all the obvious dangers and hazards. Guinard v. Knapp-Stout & Co. Co. 95 Wis. 482, 70 N. W. 671; Faber v. C. Reiss C. Co. 124 Wis. 554, 102 N. W. 1049; Schmitt v. Hamilton Mfg. Co. 135 Wis. 117, 115 N. W. 353. It is contended that the evidence tends to show that the defendant was negligent in not running the saw at a sufficiently [223] bigh speed to render its operation reasonably safe; tbat the danger incident thereto was hidden and unknown to the plaintiff; that he had not been warned of the danger; and that, since the jury found the default of the defendant in this respect to have been the proximate cause of the injury, the ■defendant must be held to hare been guilty of actionable negligence. If it be assumed that the defendant was negligent in this respect, we still find no established ground showing that the defendant is liable, for the evidence fails to show that such alleged negligence caused plaintiff’s injury. As above stated, the accident was occasioned by the bolt turning while the plaintiff had hold of it and was feeding it into the saw and by his hand slipping and coming in contact with the saw. What caused the bolt to turn and plaintiff’s hand to slip is a matter of speculation and conjecture in the light of the evidence. Plaintiff asserts that it was the slow speed of the saw; but the visible and external facts and the accompanying circumstances fail to show any such causal connection. There is nothing in the nature of the situation or of the surrounding conditions to indicate that the slow speed of the saw turned the bolt or produced a condition which brought about this result. Counsel has not pointed out why or how the speed of the saw turned the bolt and thus produced the injury, nor do we perceive anything in the accompanying circumstances which tends to establish a causal connection between the speed of the saw and the turning of the bolt. We are led to the conclusion that the court erred when the jury were instructed that the evidence permitted of an inference that the slow speed ■of the saw was the proximate cause -of the plaintiff’s injury. The burden rested on the plaintiff to show with reasonable ■distinctness that the injury was proximately caused by the alleged negligent conduct of the defendant “This burden is not met by proof which is as consistent with a theory that . . . [the injury] was due to a cause not actionable as with a theory that it was due to an actionable •cause, and in such a state of the proof the case fails to come [224] within the proper province of the jury.” Schell v. C. & N. W. R. Co. 134 Wis. 142, 113 N. W. 657; Hyer v. Janesville, 101 Wis. 371, 77 N. W. 729. Upon the record, we are constrained to hold that there was no evidence upon any of the alleged grounds of negligence to earry the case to the jury, and that the motion for a verdict in defendant’s favor should have been granted. By the Court. — The judgment appealed from is reversed,, and the cause remanded with directions to award judgment dismissing the action.