Mayhew v. Wisconsin Zinc Co.

The following opinion was filed June 17, 1914:

SiebeCKER, J.

The defendant contends upon the facts shown that the plaintiff has not established a right to recover damages to compensate him for injuries he suffered, upon the grounds, first, that the evidence adduced wholly fails to show that defendant was guilty of any negligence which proximately caused the accident, and secondly, that if such negligence on its part be found, it appears as a matter of law that the plaintiff was guilty of negligence which proximately contributed to produce the injuries of which he complains.

The defendant’s duties to securely guard the running belt so as to furnish the plaintiff a place of employment as free from danger as the nature of the employment would reasonably permit are defined by secs. 1636;) 2394 — 41, 2394 — 48, 2394 — 49, Stats. 1911. It plainly appears that the plaintiff *118 was engaged in performing labor in a place where there was machinery, belting, and appliances so located as to be dangerous to him in the discharge of his duties while in the exercise of ordinary care. The nature and scope of defendant’s duties toward the plaintiff under these statutes were considered and adverted to in Rosholt v. Worden-Allen Co. 155 Wis. 168 , 144 N. W. 650 , and subsequent cases. In Besnys v. Herman Zohrlaut L. Co. 157 Wis. 203 , 147 N. W. 37 , it was declared by this court that these statutes require “. . . the place and the method of carrying on the process of manufacture shall be as safe as the nature thereof will reasonably permit as regards safety devices and safeguards, reasonably adequate methods and processes, and any other thing reasonably necessary to protect the life, safety, and Velfare of the employee, nor shall the employer require, permit, or suffer an employee to go or be in any employment or place of employment which is not as safe as the nature thereof will reasonably permit.” The case must be considered in the ' light of the duty imposed on the defendant by these statutes. Can it be said that the jury were justified in finding that the defendant failed to securely guard or fence the belt in question and that such failure to guard was the proximate cause of the accident which produced the plaintiff’s injuries ? By their verdict the jury'expressly find that the plaintiff was not injured as a result of a pure accident and without negligence by any one; neither by his right arm having been caught by a flap on the top side of the generator belt and thereby carried over the guard rail and drawn between the belt and pulley, nor when he applied cling-surface to the belt while standing at or near the motor. The only other ground of negligence claimed was that the belt was not securely guarded or fenced, and the jury found the defendant failed in its duty in this respect. An inspection of.the record satisfies us that this finding is sustained. The evidence shows that the defendant maintained a guard along the belt of the kind and in the po *119 sition with respect to this rapidly moving belt as particularly described in the foregoing statement of the facts. Whether or not this guard, as constructed and maintained in relation to the moving belt, made the plaintiffs employment and place of employment as safe as the nature thereof reasonably permitted, was peculiarly one of fact for the jury to determine upon the evidence. The trial court was of this opinion, and % in submitting the question to the jury instructed them that under the statute the defendant as employer was not bound to anticipate every possible danger to an employee from machinery, and that it was not required to guard or fence the belt in any particular manner or way or compelled to inclose the same by boxing it in, but that it was required to guard or fence the belt so as to be in fact securely guarded or fenced. The measure of the defendant’s duty toward the plaintiff thus defined to the jury is as favorable to the defendant as the statute reasonably permits and must have operated to have the jury consider the case in the most advantageous view to the defendant. It is suggested that the evidence of the witness Kinsman, to the effect that the belt could have been guarded by boxing, was improper and against the defendant’s rights on this question, and hence its submission was prejudicial and resulted in a mistrial. The statements of the witness do not go to the extent of limiting the employer to the manner of guarding the belt. Besides, the court directed the jury that the defendant was not required to guard the belt in any particular manner, but that any guard fulfilled the statutory duty if it in fact securely guarded against the danger to which the plaintiff was exposed in performing his duties when in the exercise of ordinary care. Upon the record the court properly submitted this question, of the safety of the place where the plaintiff worked and of his employment, to the jury. It -is strenuously contended that the evidence wholly fails to sustain the finding that the defendant’s failure to securely guard the belt was the proximate cause of the plaint-. *120 iff’s injuries. It is undisputed that the plaintiff had his arm caught between the belt and pulley and thereby torn from his body. The argument on this question is that it was impossible for the plaintiff to be drawn over the guard rail by coming in contact with the running belt while in the act of putting belt-cling on the inner surface of the lower half of the belt in the manner and at the place as he testified. It is claimed that the running belt could not in any conceivable way have drawn him over the guard to the pulley. Assuming, without deciding, that this contention is a proper and correct deduction from the plaintiff’s evidence, yet this does not conclude the jury from finding upon the other evidence in the case that the absence of a secure and safe guard proximately caused the plaintiff’s injury. The jury were not bound to accept the plaintiff’s explanation as to what caused him to fall over the railing and thus come in contact with the running belt and pulley. It is reasonable that the plaintiff’s mental distress incident to the injury naturally affected his recollection in some degree, or that on account of the momentary time within which the accident happened he could not note how it occurred, and hence that his impressions of the accident were inaccurate, and therefore the jury were not restricted to rely wholly on his evidence on this subject. We consider that the jury were warranted in rejecting the plaintiff’s narrative of the events of the accident if they were convinced that he labored under a mistake'and they believed that the other evidence with reasonable distinctness showed that the failure to securely guard the belt caused him to come in contact with it and the pulley in some other way. We are persuaded from the facts and circumstances of the case that the jury were justified in finding that the plaintiff, by reason of an insufficient guard, came in contact with the running belt while standing at a point either outside of the guard rail or near the post at the end of the guard on the east end of the *121 motor pulley, and by reason thereof fell upon the belt and was drawn toward tbe pulley, wbicb caught his arm and tore it from his body. We are also convinced that the evidence justifies the inference that it was practicable to bos the belt so as to inclose it up to the pulley with proper openings along the side to do the ding-surfacing, and that tho omission of the defendant to so guard it justified the jury in concluding that such failure to guard prosimately caused the plaintiff’s injuries. Unless the evidence was such that no recovery is permissible in any view which can be properly taken of the evidence, the verdict and judgment must stand. Since the evidence in either view suggested’sustains the finding of the jury on the question of proximate cause, the defendant’s contention must be denied. Smith v. Winnebago R. Co. 153 Wis. 469 , 140 N. W. 327 ; Myers v. Pittsburgh C. Co. 233 U. S. 184 , 34 Sup. Ct. 559. Under this view of the case, the hypothetical question propounded to the witness Jarrett embraced an ultimate question which was properly one to be submitted to the jury as one within their range of knowledge as men of experience in the common affairs of life, and hence the court properly excluded it.

It is contended that the evidence shows that plaintiff must have been guilty of contributory negligence which proxi- • mately contributed to cause his injuries. An examination of the plaintiff’s testimony in connection with the facts and circumstances warranted the jury in finding that he was free from contributory negligence. The facts and circumstances of the case furnish no grounds to declare as a matter of law that-the jury had no right to accept the plaintiff’s evidence in connection with the established facts of the case on this subject, and their finding, therefore, cannot be disturbed.

It is urged that the damages awarded are excessive. We have examined the evidence showing the nature and extent of the plaintiff’s injuries and find that the amount awarded by *122 the jury to compensate the'plaintiff for bis injuries is not so clearly against the evidence on tbis question that this court can say that tbe amount awarded is excessive. • By the Court. — Judgment affirmed.

Maeshall, J., dissents.

A motion for a rebearing was denied, with $25 costs, on October 6, 1914.