Nickels v. Manitowoc Shipbuilding & Dey Dock Co.

Winslow, C. J. Numerous assignments of error are made, many of which will not be discussed in this opinion, but it is not to be understood therefrom that all have not received attention. [303] The general claim is made that the evidence was overwhelming that it was not nsnal or customary to guard main shafting situated as the shafting was in this case, and hence that sec. 1636y of the Statutes does not cover the case under the rule approved in West v. Bayfield M. Co. 144 Wis. 106, 128 N. W. 992. There was undoubtedly much testimony tending to show that line shafting of the same general nature in other shops is not usually guarded, but the difficulty is that much of that testimony related to line shafting which employees were not expected to approach in the course of their duties while in motion. In the present case the evidence quite satisfactorily showed that the employees of the defendant were expected and required to ascend upon the staging and work at times in close proximity to this line shaft while it was in motion. The statute requires the guarding of all shafting so located as to be dangerous to employees in the discharge of their duty. In shops where no duty called an employee to the vicinity of a moving shaft, it may well be that the statute imposes no duty to guard it, but the fact that such shafts are not generally guarded would cast no light on the question of the duty to guard a shaft near which employees are required to work while it is in motion. There was plenary evidence that the shaft in question here was such a shaft, hence the evidence of custom above referred to had little weight and certainly was not controlling. Some detail errors assigned will be given brief notice. An employee of the defendant, named Nuhs, was called by the plaintiff as an adverse witness, and upon objection by the plaintiff the defendant’s counsel was not allowed to cross-examine him. This was error under the ruling in Guse v. Power & M. M. Co. 151 Wis. 400, 139 N. W. 195. However, it does not appear that the error was in any respect prejudicial. The witness was called almost at the close of the plaintiff’s case, and the defendant could easily have put him on the. stand as a witness for the defense within a few moments after [304] bis examination as an adverse witness ceased, but did not choose to do so. We see no reason to suppose that the refusal to allow cross-examination prejudiced the defendant’s case in any way. No one saw the accident, and certain shop employees who were called as witnesses for the plaintiff were allowed to state how they would go to work to put the belt on the pulley on the main shaft, and how it was usually done, the plaintiff’s theory being that the deceased had concluded his work of putting the new tight pulley on the countershaft, and had crossed over on the staging to the immediate proximity of the main shaft, and was attempting to put the belt onto the pulley on the main shaft when his jumper was caught by the shaft itself. These questions were objected to, and error is assigned on the overruling of the objections, but we see no good ground for complaint. The question for the jury was whether the plaintiff was caught while endeavoring to perform his duty. If a witness had seen him trying to put the belt on when his clothing was caught, he could have testified to the fact. No one having seen him, it was certainly competent to show that in the ordinary course of an attempt to put the belt on he would be brought in close proximity to the shaft, where his clothing would be likely to be caught. As the ordinary method of putting a belt on under such circumstances is not matter of common knowledge, no reason is perceived why those who had what may be called expert knowledge on the subject could not testify to it. The foreman, Hendries, after testifying that the belt was always put on at this place when the main shaft was in motion, was allowed to answer against objection that he expected Nickels would do it that way when he sent him up there. This ruling is assigned as error, but we see none. If the belt was always put on that way, and the foreman gave no instructions-to do the task in any different manner on this occasion, it would seem that not only the foreman but Nickels himself would necessarily expect that [305] it would be done in tlie usual and customary way. In any event, no prejudice could result from the ruling. The pulley on the main shaft had a break on the edge, and this break was alleged in the complaint to be one of the causes of the accident. On the trial, however, there was no evidence tending to show that the break had any connection with the accident. The plaintiff, however, was allowed to introduce the pulley in evidence, and this ruling is alleged to be error. It does not appear that any comment was made on the condition of the pulley, or any argument based thereon. Doubtless the court would have instructed the jury that the break was not to be in any way considered had he been requested to do so, but he was not. It is clear that this was a part of the machinery about which the deceased was at work when the accident happened. No intelligent juryman could have supposed under the state of the evidence that the break in question had anything to do with the death of the deceased, and we are unable to see how the introduction of the pulley in evidence could have been prejudicial in any event, even if it were conceded to have been improperly admitted. Fault is found with the questions submitted to the jury, as well as with the rulings of the court refusing to submit certain other questions 'proposed by the defendant, but we are well satisfied that the questions actually submitted fully cover the issues and are not objectionable in form. Complaint is also made of the charge, but it seems on examination to have very carefully guarded the defendant’s rights and to include all the substantial propositions necessary to be placed before the jury to enable them to properly understand the questions and the law applicable to them. On the whole, the case seems to have been tried with conspicuous fairness and care. There was ample ground for the inference drawn hy the jury that the deceased met his death while attempting to put the belt on the main shaft pulley, after completing his work on the countershaft, and thus carry [306] out bis instructions to bave everything in readiness for tbe operation of tbe countersink machine. Eew cases depending on inferences from circumstances are more satisfactorily proven than tbe present. We discover no prejudicial error in tbe record. By the Court, — Judgment affirmed.