Yanike v. Chicago & Northwestern Railway Co.

SiebecKee, J. It is contended that the evidence is without dispute in support of the ultimate fact that the plaintiff’s in — 558 — juries resulted from having bis arm caught in the drive wheel and drive belt; that this caused him to be thrown onto the moving parts of the engine connected with the driving shaft; and that he struck these parts in a way that caused the injuries complained of. This claim entirely ignores the plaintiffs evidence. He testified that he approached the machinery at the drive wheel of the engine by lifting the guard; that he took a position near the machinery in order to take off the cover of a grease box to fill it with grease; and that, while in a stooping posture and about to take hold of the cover of the grease box located between the drive wheel and the pulley carrying the governor belt, the belt broke and struck him on the head, causing him to fall and receive his injuries. He had no further recollection of what took place and did not know in what manner the various injuries he then received were inflicted. 1. It is argued that his statement that the governor belt thus caused him these injuries is rendered wholly incredible by the following facts: When first he was asked, after the injury, how he got hurt, he stated he did not know and that he guessed the fly-wheel caught him; the position in which the body was found; the nature of his injuries; the facts and circumstances showing that the governor belt could not have struck him as he testified. As to the weight of this alleged former statement, it is manifest that the plaintiff did not undertake thereby to give in a detailed manner what occurred at the time, but he merely stated generally, in reply to questions put to him a few days after the injury, that he guessed the flywheel caught him. It is apparent from the context of the statement that the plaintiff was not attempting to give a detailed account of what occurred and what caused him to be injured. It is quite probable that when he fell as he testified, this caused him to come into contact with the drive belt or the fly-wheel, and he stated his conclusion during this interview. Nor, does the position of his body on the floor after the in — 559 — juries, or the nature of his injuries, necessarily refute his statement that he was struck hy the broken belt in the manner he testifies. The jury may well have found that, after being stunned hy the blow of the belt, he fell upon the moving parts of the machinery before him and that he was struck thereby, and that this produced the different injuries he sustained and caused him to fall onto the floor into the position in which he was found. The nature of his injuries and the position of his body on the floor could well be produced by coming in contact with the moving wheels and the pitman after he was stunned by a blow and caused to fall onto these moving parts of the machinery. The evidence on these points clearly raised an issue of fact for determination by the jury and the court properly submitted it to them for a decision. 2. It is further contended that it is a physical impossibility that a belt of the size of this governor belt, running at the rate of speed it did and under the tension to which it was subjected, could, when it broke, whip over and fly with sufficient force toward the plaintiff to strike him as he testified it did. That the belt broke is not disputed. It is, however, averred that it appears that the material of the belt had so deteriorated from excessive absorption of machine oil that it had little if any elasticity or tensile strength and required but little force to break it, and hence, under well known physical laws, the broken end could not have whipped over or flown toward the plaintiff and have imparted a blow on his head sufficiently heavy to cause him to be stunned and to fall. Oounsel’s argument on this point assumes these conditions as matter of common knowledge in the light of the facts and circumstances shown by the evidence. There are, however, insurmountable obstacles to such an assumption. The plaintiff’s evidence is positively and clearly to the effect that the end of the belt whipped up and flew toward him and that it struck him with such force that it stunned and felled him. Eurthermore, the inference from the evidence of some of the witnesses who had — 560 — expert knowledge on the subject corroborates tbe plaintiff’s evidence and is to the effect that such a result was probable under the conditions here presented. Another claim is that the belt could not have so struck the plaintiff because the evidence shows that it dropped into the space between the pulley on the shaft on which it ran and the pulley near the governor. True, some of.the witnesses so locate the belt after the accident, but this is controverted by the plaintiff and by inferences from facts stated by others. Nor does it conclusively follow from such location of it that it did not whip or fly up and strike the plaintiff as he claims. These varying facts and justifiable inferences required that this question be submitted to the jury. 3. It is strenuously asserted that the facts wholly fail to show that the defendant could reasonably have contemplated that any. injury would probably be caused to some person by this defective belt. If the facts and circumstances- are such that the consequences attributable to the negligence charged are within the field of reasonable anticipation, then the party guilty thereof is liable, though they may not have been specifically contemplated by him. Morey v. Lake Superior T. & T. Co. 125 Wis. 148, 103 N. W. 271, and cases there cited. The argument upon this point rests largely on the contention advanced by the appellant to support the claims respecting the facts involved in the foregoing question, to the effect that it was wholly improbable- that a break in this belt, in the light of the conditions and the uses and functions to which it was applied, would cause an injury to any person. Viewing the situation as we have indicated, the question arises: Are the injuries found by the verdict as resulting from the defendant’s negligence of such an unusual and extraordinary character as to place them outside of the ordinary experiences of life and hence not to be anticipated by a person of ordinary intelligence and prudence ? It does not so impress us. The fact that a defective belt may, when in operation, break and impart a dangerous blow to an operative near it, is not such an — 561 — extraordinary event as to remove it beyond tbe field of foreseeable dangers. Tbe circumstances and conditions bere presented are not so explicit and clear in this regard as to remove tbe inference reasonably flowing therefrom and to take tbe inquiry out of tbe field and function of tbe jury. We are of tbe opinion that tbe question of whether or not an injury was reasonably to be anticipated from such negligence was a jury question and that it was properly submitted to them. 4. It is also contended that if tbe belt is to be considered a defective one and that its breaking was tbe proximate cause of tbe plaintiffs injuries, then, under tbe facts and circumstances ■shown, tbe pjaintiff assumed tbe risk and was guilty of contributory negligence in attempting to put grease into tbe cups while tbe machine was in operation. This claim is predicated on tbe grounds that tbe plaintiff was an experienced operator of this machine, bad full opportunity to know tbe condition of tbe belt and tbe dangers incident to its breaking, and that be bad no occasion to put grease in tbe cup during tbe hours tbe engine and drive shaft with tbe attachments and belts were in motion. Though there is testimony that this service was commonly performed before starting tbe engine in tbe morning and during tbe noon hour, yet it is a matter of inference as to whether or not it was necessary and proper to put grease into these cups during tbe hours tbe machinery was in operation. Nor can it be said, as matter of law, that tbe plaintiff knew or should have known of tbe defective condition of tbe belt. Indeed, tbe evidence of witnesses experienced in such matters presents serious conflicts as to tbe external evidence of its defective condition. Tbe undisputed inferences from tbe whole evidence on these questions is not so clear that we can say as matter of law that tbe plaintiff’s conduct, per se, establishes that be was negligent or that be assumed tbe risk. In connection with tbe fifth question tbe court instructed tbe jury to tbe effect that if tbe plaintiff “ought, in tbe exercise of ordinary care, to have known and appreciated tbe — 562 — danger attending bis employment around and near tbe belt in question, be would be beld to have understood and appreciated sucb danger, and to be thereby guilty of a want of snob ordinary care as is meant in tbis question.” Tbis required tbe jury to determine wbetber or not tbe plaintiff was negligent in taping tbe position be did to put grease in tbe cup, in view of tbe condition of tbe governor belt as embraced in tbe defendant’s requested question pertaining to tbe assumption of risk, and bence must be beld to bave been resolved by tbe jury in accordance with tbeir answer to tbe question concerning contributory negligence. Bucher v. Wis. Cent. R. Co. 139 Wis. 597, 120 N. W. 518. We find no reversible error in tbe admission of tbe evidence of tbe witness Gether. He showed himself to be sufficiently informed on tbe subject to qualify as an expert. Tbe fact that bis evidence was received as rebuttal did not operate to .the defendant’s prejudice and does not warrant tbe conclusion that it substantially affected tbe defendant’s rights. We find no reversible error in tbe record. By the Court. — Judgment affirmed.