Zabawa v. Oberbeck Bros. Manufacturing Co.

The following opinion was filed June 1, 1911: Timxiw, J. The plaintiff sought to recover damages caused by the negligent act of an incompetent fellow-servant. The court directed a verdict for defendant upon the ground that the act causing the injury was not within the scope of the employment of the fellow-servant. Plaintiff was fifteen and Albert, the fellow-servant, sixteen years of age, both working in defendant’s factory. On the floor in this factory upon which they worked there was considerable machinery. Besides the saw on which plaintiff was injured there was a planer and another crosscut saw. There were also three ripsaws and the usual shafts, belting, and pulleys. From ninety [623] to one hundred men were engaged in working on this floor. Albert fed or operated one of the ripsaws, and it was the plaintiff’s duty to take tbe sawed pieces from this machine and also to aid Albert or co-operate with Albert in cleaning up sawdust and shavings around these saws and other ma•chines with a broom. Among the machinery in this factory was a circular crosscut saw in the lower end of a frame suspended from the ceiling, driven by a belt extending downward parallel with this frame. The frame was SO1 suspended that the frame and saw hung to the east side of the saw. bench or table. The saw was operated by drawing it with its swinging frame by means ■of a handle to the west toward thé operator and across the board or piece lying on the saw table which it was expected to crosscut The man in charge of this crosscut saw stopped the saw and left. Plaintiff and Albert began to clean up ■around the saw. Albert pulled the suspended frame carrying the still saw to the west and braced or blocked it there with a piece of board sixteen or eighteen inches long. Plaintiff went to the east side of the saw bench or table to clean up on that side. While plaintiff was so engaged Albert shifted the belt from the loose pulley to the tight pulley and started the saw. He did this because he wanted to cut a stick in two. Why he wanted to cut the stick in two he could not tell. The jury would have a right to infer that it was a piece of boyish mischief. The frame with the revolving saw in some way escaped from the block or brace and in obedience to gravitation swung back east against the plaintiff and cut off his arm. Albert, testifying for the defendant, says the plaintiff knocked out the brace or block. Plaintiff says he did not. Albert had prior to this time cut canvas on the crosscut saw. He had thrown a stick into a revolving pulley. He had pushed some lumber in play from plaintiff’s truck, and he had indulged in wrestling with plaintiff on this factory floor. The first two appeared to have been isolated items of play [624] or mischief and the last two apparently occurred more than once. It is contended that the act of Albert in starting the saw was outside the scope of his employment. But that was a question for the jury. The employment in which plaintiff and Albert were engaged at the time of the injury consisted in cleaning up around this crosscut saw. It may hare been necessary or convenient, when cleaning on the east side, to swing the saw with its pendulous frame to the west and block it there. If this was part of the-operation of cleaning up, then the person who swung it over and blocked it should leave the belt on the loose pulley while the saw was in that, position. Instead he negligently started the saw. This latter was not an act so remote or divergent from the work in which plaintiff and defendant were engaged as to justify the court in taking the question from the jury and saying that it appeared affirmatively and as matter of law beyond the scope of Albert’s employment. Daley v. C. N. W. R. Co. 145 Wis. 249, 129 N. W. 1062. Although the court did not decide the case on that ground, it is next contended that the decision of the circuit court may be supported because there was no sufficient evidence of the incompetency of Albert, and further that there was no sufficient evidence to charge the defendant with notice or knowledge of such incompetency. The evidence is not very satisfactory. It is however proper to consider the nature of the place in which Albert was employed. A mischievous youth inclined to play in the vicinity of saws, belts, and shafting might be quite incompetent when the same youth would be competent in other work. There is evidence from which the jury might infer that Albert was a youth so disposed, and the very act which caused the plaintiff’s injury was an act of this character. Four instances of mischievous or sportive conduct are presented as above indicated. The age of the boy Albert was known to his employer. Some little supervision, [625] would no doubt bave disclosed bis disposition to play and bis consequent inattention in proximity to tbis dangerous machinery, and it can bardly be said as a rule of law that an employer exercising ordinary care and having boys of tbis age engaged around dangerous machinery would make no effort to exercise some degree of watchful supervision so as to ascertain whether they were careless and mischievous as boys are inclined to be or whether they were careful and attentive to duty. We think this case is within the principle of Molaske v. Ohio C. Co. 86 Wis. 220, 56 N. W. 475, and other cases cited by the appellant. Albert’s father, who worked on the same floor, was by the foreman given charge of Albert with directions to keep him busy. There was another subordinate foreman on the floor, and the general foreman or superintendent had every opportunity to observe these boys, and ordinary care might require him to make an effort to prevent mischievous play on the floor while the factory was in operation, or to discharge any boy who evinced a disposition to indulge in play or marked inattention to his duties amid such dangerous surroundings. Certainly it is a matter of common knowledge that most hoys of sixteen are playful and thoughtless and many of them endowed with a monkey-like mischievousness which might be very dangerous to others in a factory like, that described. Erom this evidence, consisting of the four instances mentioned, the age of the boy, the nature of his surroundings, the opportunity of the master for observation, supplemented by the nature of the act which caused the injury, the jury might have found that Albert was incompetent because of his youth and mischievous propensities to be employed around dangerous machinery, and that the employer ought in the exercise of ordinary care to have known this, and that the plaintiff was injured by the negligence of Albert. It follows that the judgment ought to be reversed. By the Court. — Judgment reversed, and the cause remanded for a new trial. [626] Tbe following opinion was filed June 3, 1911: