Edler v. Algoma Foundry & Machine Co.

[472] The following opinion was filed December 3, 1929: Stevens, J. The case presents the question whether a manufacturer is liable for personal injuries sustained by one with whom it has no contractual relation where it is claimed that the injury is caused by failure to comply with a statutory requirement that machines manufactured by it shall be provided with safety devices. It is a general, rule that manufacturers are not liable for personal injuries sustained through the use of their product by persons with whom they have no contractual relations. To this rule there are certain well recognized exceptions in the case of products which are inherently and normally dangerous. Machines which operate saws such as that in question are so inherently dangerous that the legislature determined that “No person, firm or corporation shall offer or expose for sale any machine for the purpose of sawing wood unless such machine shall be provided with reasonable safety devices for the protection from accidents from saws.” Sec. 167.16, Stats. 1925. Sec. 167.12 of the Statutes was a companion act which required that all “who shall sell, offer or expose for sale” corn shredders “shall provide such machine with safety or automatic feeding devices.” It was held in Derouso v. International Harvester Co. 157 Wis. 32, 35, 145 N. W. 771, that the duty of the manufacturer to provide such machines with safety devices was absolute. The proof is sufficient to establish the fact that the particular machine upon which the plaintiff was working at the time he was injured was manufactured and sold by the defendant company. The officers of the defendant testified that the company provided guards with every saw rig manufactured and sold by it. There is no proof to contradict this testimony. Proof that this saw rig or any other similar rig did not have a guard when it was pur [473] chased from a retailer is not sufficient to raise a jury issue upon that question. To present that issue there must be proof tending to establish the fact that the defendant did not provide the machine with a guard when it was sold by it. Without such proof “plaintiff cannot recover under any theory of the law.” Galst v. American Ladder Co. 165 Wis. 307, 311, 162 N. W. 319. The court was clearly right in holding that there was no issue for the jury on this question. The fact that the guard was not in place at the time that the machine was sold does not render the company liable. The duty imposed upon the defendant by the statute was that the machine should be “provided with reasonable safety devices.” When a machine is shipped knocked down with a guard securely fastened to it, although not in place, the company has “provided” such a safety device. The court was in error in holding that the case did not present the question whether the guard provided was one adequate to meet the requirement that such machine should be “provided with reasonable safety devices.” In Derouso v. International Harvester Co. 157 Wis. 32, 35-6, 145 N. W. 771, in considering the statute which imposed upon the manufacturers the duty to guard corn shredders, this court said that the statute required safety devices which shall be “reasonably adequate and efficient to perform the functions required of them,” and “that if when properly maintained they fail to. reasonably perform their purpose and injury results therefrom without fault of the injured person,” the manufacturer is liable in damages. The testimony of two witnesses, one of whom had long practical experience and the other expert engineering experience, to the effect that the guard did not provide adequate protection or no protection at all presented a jury issue upon the question of whether the guard supplied with the saw rig was a reasonable safety device. Because of the failure to submit this issue to the jury, the judgment [474] appealed from is reversed and the cause remanded for a new trial. By the Court. — So ordered.