Kroger v. Cumberland Fruit Package Co.

Maeshall, J. From the foregoing it will be seen the situation, in brief, which the trial court had to face on the motion to direct a verdict was this: Appellant — at the zenith of maturity for one of his class, a man of some experience working around dangerous machinery and of ordinary opportunity for observation respecting the same and of ordinary intelligence, in the full possession of his faculties, but without experience in operating the particular machine or having had instructions in respect thereto — was put to work feeding boards into an ordinary small planer of ordinary construction. It had but one cutting head of small diameter, armed with two knives, observable from the front when idle and from the sides when in operation and open to fair view from the back. Whether viewed from any point, on account of rapidity of motion, the knives were so invisible even to the practiced eye as not to be appreciated. The cylinder was covered over the top and down in front to about where an opening was necessary to permit of boards’ being fed in, and — 440 — uncovered at the back to permit of their passing and the shavings escaping. Eor the purpose of removing an accumulation of the latter from a pressure bar placed just back of the cylinder, with the upper surface below the top1 thereof, plaintiff, from a position at the side and towards the front of the machine, with his mittened right hand, reached over and into the zone of the cylinder, above and at the back of the pressure bar, and was injured. Under such circumstances, can it reasonably be said respondent was actionably negligent proximately causing such injury? Moreover, can it reason-? ably be said appellant was free from contributory negligence notwithstanding his testimony that he did not know the knives were revolving in the region where he placed his hand, in view of the fact that he saw the effect upon the boards as he fed them through the planer, that a stream of shavings was thrown constantly back from such region, accompanied by a sharp noise from the cylinder region, and he observed and knew the use of the appliances which produced rotary motion? By the motion to direct a verdict the propositions suggested were presented to the trial court for solution. They, in a sense, involved matter of fact, but not all such are for jury solution. It almost seems a work of supererogation to speak of such elementary matters, but — witnessing, as we do, from time to time, apparent want of appreciation that a motion to direct a verdict is as legitimate as any matter of practice in the administration of justice; that it may rightly be made in any case; that it is advisable to make it in many cases; that to make it is a professional duty in some cases; and that whenever made a judicial duty clearly devolves upon the trial judge to decide the matter and, if satisfied that the evidence in any reasonable view will not warrant but one conclusion, a clear judicial duty to direct a verdict (Finkelston v. C., M. & St. P. R. Co. 94 Wis. 270, 68 N. W. 1005; Cawley v. La Crosse City R. Co. 101 Wis. 145, 77 N. — 441 — W. 179; Chybowski v. Bucyrus Co. 127 Wis. 332, 106 N. W. 833), — it is thought to be appropriate, even if there be no real necessity for it, to speak of some fundamental principles of .our system of jurisprudence which are involved. Upon the motion in this case the trial judge was asked to decide whether, conceding the evidence to establish in plaintiff’s favor to a reasonable certainty all it tended to establish, could men of the age of discretion,, of ordinary intelligénce, reasonably differ respecting the proper conclusion to draw? Or to put it another way, Was there room in the evidence for conflicting reasonable inferences ? Or, as it has been many times put by this court, Was the evidence so clear and convincing one way as to leave no room for unbiased and impartial minds to come to more than one conclusion; or so clear and conclusive as not to admit reasonably of any opposing inferences in unbiased and unprejudiced minds? Powell v. Ashland I. & S. Co. 98 Wis. 35, 73 N. W. 573. It matters little, if at all, which of the foregoing phrasings is used. They all mean the same thing though, it is true, one is liable to be so strongly impressed with one way as to be disposed to criticise or condemn, others. That may come from the stronger conviction respecting manner of stating the principle than respecting the real logic of the principle itself. Strictly speaking, the inquiries suggested involve consideration of matter of fact though it is often spoken of as if solely matter of law. Powell v. Ashland I. & S. Co., supra. It does not seem difficult to grasp the idea that the question— Does the evidence as matter of law establish the fact one way so conclusively as to exclude every reasonable ground for finding it to be the other ? requires one to go back to the question of whether there is room in the evidence for jurors to reasonably differ. That in the broad sense is matter of fact which the court must decide as has been frequently suggested. In every jury trial the court by the very act of submitting the case to the jury impliedly decides there is room in the evi442 deuce for conflicting reasonable inferences. There is no legitimate way of escape from the duty of deciding such a question when properly challenged in respect thereto. It is purely a judicial matter. In dealing with it, properly, there can be no usurpation of jury functions. Such functions are well defined. They do not deal with any situation except those where there is some room for reasonable doubt as to the truth of controverted matters of fact. Up to that point the trial judge is supreme. Beyond that the jury takes hold. In the latter field the jury draw the proper inference from the reasonable conflicts. In the former the judge declares the one reasonable inference and, as matter of law, because in contemplation of law when the truth is ascertained by that test it is truth infallible so far as our judicial system goes. We are not unmindful of the fact that there is a sentiment, indulged in by some, that, since the propositions under discussion involve whether minds may reasonably differ, it is illogical to decide in the negative where men confessedly up to the plane of ordinary comprehension do in fact honestly differ; that it involves the idea, from the viewpoint of those on one side, that those on the other are either not of ordinary comprehension or do not reasonably differ. Such indulgence in such sentiment loses sight of the fact that judges must decide judicial questions including those under discussion. They are under solemn oath to do so. They cannot fail in performance according to their honest convictions without violating such oaths and manifesting unfitness for the great trust reposed in them. While the result at times may be that the judgment of one has, from a technical viewpoint, a cast of convicting an equal of not reasonably differing — of concluding contrary to rules of common sense — in the broad field of judicial work judicial instrumentalities rarely if at all have any such idea. But the situation giving rise to such cast or tending that way in the mind of anybody should, as it doubtless does, strongly constrain to prevent — 443 — such result tbougb that cannot legitimately go to tbe extent of justifying or excusing one in deciding contrary to bis own firm convictions. To do so would violate one’s oatb of office and tbe plainest principles of judicial duty. So mere fixed differences of opinion even among judicial peers as to tbe law or as to tbe facts cannot necessarily stand in tbe way of a decision that there is no reasonable ground for sucb differences. That is evident in decisions by divided courts in all jurisdictions and in all ages. It is a part of our system wbicb courts bave no right to change. It calls loudly^ and ought always efficiently, on those charged with official duties to agree if they reasonably can without violating their convictions, but when that cannot be done to each observe strictly bis official obligation and however forcibly be may present bis views to bave due regard for tbe opinions of others, including that of tbe trial judge who has always tbe best opportunity to determine any matter dependable upon human testimony. • So tbe trial court, necessarily, determined tbe question in this case of whether there was room in tbe evidence for unbiased minds to reasonably differ in regard to tbe truth respecting tbe vital issues. It matters not that tbe jury might bave come to a different conclusion. It was not within their function to pass on that question as we bave seen. Tbe question as it comes here is not presented as an original one. It might appear from tbe printed record alone that a different decision below could well bave been reached and yet an affirmance follow, since to warrant a reversal it must appear that tbe decision complained of is clearly wrong. McCune v. Badger, 126 Wis. 186, 105 N. W. 667. As there said, “the law rendering it obligatory to decide tbe question of fact upon a motion for a nonsuit or a verdict in view of the consideration due tbe trial court’s decision gives dignity thereto entitling it to prevail, unless upon tbe record it appears to be clearly wrong.” So in ease of some reasonable — 444 — ■doubt in such a situation tbe obscurity should be resolved in favor of sustaining the court below. Under the foregoing rule and numerous adjudications of this court in similar situations to the one we have here, can .it fairly be said the trial court was manifestly wrong in holding that there was no actionable negligence in failing to guard the cylinder of the planer at the back side thereof out of reach, as it was, of the operator in the ordinary course of his ■duties, and reached only by his actually going somewhat out of his way and putting his hand into the zone of the revolving knives, — into a place where no one had instructed him to interfere and into which he had never seen any one else put his hand or attempt to do anything of the nature he attempted to do ? It has been frequently held that the duty to fence or guard does not extend to machinery features so lo-•eated that one would have to depart from any way which could reasonably be expected in order to invade the region of •danger from it. Powalske v. Cream City B. Co. 110 Wis. 461, 86 N. W. 153; Miller v. Kimberly & Clark Co. 137 Wis. 138, 118 N. W. 536; Houg v. Girard L. Co. 144 Wis. 337, 129 N. W. 623. Again, can we well say the trial court was clearly wrong •in holding that, notwithstanding the testimony of plaintiff as to his ignorance of there being revolving knives in the region where he put his hand, that he must have known of it, or •ought to have known of it, especially in view of the many ■situations of similar character where it has been held that •similar circumstances so clearly overcome the evidence of the claimant as to render it of so little probative force as not vto create a conflict for solution by a jury. Dougherty v. West Superior I. & S. Co. 88 Wis. 343, 60 N. W. 274; Roth v. S. E. Barrett Mfg. Co. 96 Wis. 615, 71 N. W. 1034; Groth v. Thomann, 110 Wis. 488, 86 N. W. 178; Horn v. La Crosse Box Co. 123 Wis. 399, 101 N. W. 935; Horn v. La Crosse Box Co. 131 Wis. 384. 111 N. W. 522: Gardner v. Paine L. — 445 — Go. 123 Wis. 338, 101 N. W. 700; Schmitt v. Hamilton Mfg. Co. 135 Wis. 117, 115 N. W. 353. Those and many other eases are each so strikingly like this-one that either might be referred to seemingly as a ruling authority. In the aggregate they come as near establishing a definite principle governing such cases as this, as one could expect to have in the law of negligence; dealing as it does with situations each differing, at least slightly, from the-other. In all or nearly all the cited cases the same feature will be found which we have here and upon which appellant most relies, viz.: the positive testimony of the claimant that he did not know there was a rapidly revolving cutting or other instrumentality creating danger in the zone where he put his hand. In each it was insisted that such story, positively told and persisted in, raised a jury question. In each it was held that the story was not in reason believable and so did not create a conflict with the circumstances showing that the witness in fact did know, or at least as a man of ordinary common sense he ought to have known, of the danger he encountered. In these cases it is stated over and over again, in one form or another, that when all reasonable probabilities arising from physical situations, natural laws, or common knowledge of ordinary persons, are so clearly one way as to leave no reasonable ground in the minds of reasonable men of ordinary intelligence to have any fair doubt about the matter, evidence from the mouth of one or more witnesses contrary to the obvious truth does not create a conflict for solution by a jury. Sometimes that doctrine will be found phrased one way and sometimes another. All mean the same and all convey the same idea as will be appreciated upon examining the matter from the viewpoint of the logic of the principle itself. The greatest danger of its not being legitimately applied lies in obscurity being created by favoring one set way of phrasing it to the extent of doubting another meaning just the — 446 — same and perhaps more easily understood by many, if not the majority, having to do with the matter. Truth does not change its character by mere changes in groupings of words used to express it for its immortality is inherent. One may picture it one way and another by a different method according to differing mentalities, temperaments, and conceptions. The pictures may differ in refinement but be, just the same, pictures of the one infallible thing. We must face the situation here that plaintiff was of mature age and of ordinary intelligence in full possession of his faculties. That all appears affirmatively, but if that were not so, certainly there is no evidence to show that respondent had any reasonable ground to think otherwise. It is hardly reasonable, we must conclude, to suppose that such a man could witness, hour by hour, such results as were produced as he fed the planer, the accomplishment taking place in the narrow zone of three inches or so accompanied by rotary motion produced by understood attachments of the machine, hy noise like unto that of a threshing machine cylinder, the trembling of the machine and forceful hurling of shavings over the pressure bar from the point where the board emerged — without knowing that in the narrow place there was a cutting mechanism working with great power. Is it clear then that the trial court was wrong in holding appellant’s story to be unbelievable; that when he put his hand over and against the back side of the cutting cylinder — up to within a few inches of where he was accustomed, when standing in front of the machine as the end of a board disappeared under the chip breaker to hear the loud noise made by the cutting head followed immediately by shavings flying with force from out the very place where he put his hand — he did not know there was a cutting mechanism in that region with which his hand was liable to come in contact ? It is considered that such question must be answered in favor of respondent. — 447 — Counsel for appellant took a wrong view of the case in supposing that the test of whether appellant’s story is believable is whether any man under any circumstances could be reasonably held not to know of a cutting mechanism such as existed in this case, creating a danger zone in which his hand would be injured if placed there. Not so. The evidence must be considered from the viewpoint of respondent before the accident. There was nothing indicating that appellant was not in possession of all his faculties or not of full age and of ordinary common sense for one of his age. Is it reasonable to suppose that such a man under the circumstances in which appellant was placed, could, in the exercise of ordinary care, be ignorant of there being a danger zone in such a place as that where appellant reached with his hand, created by some cutting mechanism appropriate to produce the results witnessed to the boards as they passed through such ■zone? That is the question. We are constrained to the -conclusion, there is no fair ground for overruling the decision of the trial court in respect thereto. There are a number of other errors discussed in the briefs of counsel for appellant which need not be treated. If they were all resolved in appellant’s favor it would not make any difference with the result. Therefore, we pass them with this brief notice. Aside from a somewhat lengthy discussion of a few elementary principles which the writer at least thought might well be treated as they have been, though they are a part of the “a b c,” so to speak, of our judicial system, we have given most attention to the question of whether the trial court was clearly wrong in deciding that appellant was guilty of contributory negligence as a matter of law. However, we find quite as much difficulty in concluding that there was clear error in holding, as matter of law, the evidence was insuffi■cient to prove respondent was actionably negligent. By the Court. — The judgment is affirmed.