Puls v. Chicago, Burlington & Quincy Railroad ( 1914 )

Dibell, C.

Appeal by the defendant from an order denying its alternative motion for judgment notwithstanding the verdict or a new tria] after a verdict for the plaintiff in an action to recover for personal injuries sustained while in the employ of the defendant.

The plaintiff was injured while working for the defendant on a hand jointer at Grand Crossing, in Wisconsin. Two acts of negligence are alleged: (1) That the knives of the jointer were dull .and nicked; (2) that the defendant failed to guard the knives.

1. There is evidence that the knives were dull and nicked and that their condition in this respect tended' to throw or kick back the boards. If they were kicked back, there was a likelihood that the •operator’s hands would come in contact with the knives. The evidence was such as to make a question for the jury upon the negligence charged.

2. Under authority of the statutes of Wisconsin the Industrial Commission made the following order assumed to be of statutory effect:

“All hand jointers must be equipped with safety cylinder heads and a guard must be placed over the knives to protect the hands of the operator.”

It defined “guarded” as follows':

“The term ‘guarded’ when used in these orders shall mean so covered, fenced or inclosed that a person in the course of his employment is not liable to come in contact with the point of danger and be injured.”

The defendant complied so far as to furnish safety cylinder heads. It did not place a guard over the knives. There is evidence that it was practicable to do so. There is evidence that a guard of some kind had at one time been over the knives. There was evidence that it was impracticable. There was testimony on the part of the defendant that guards could not be placed over the knives without destroying the character of the machine as a jointer. The court submitted the case to the jury substantially upon the theory that the defendant was liable only in the event that it was practicable to place a guard over the knives; and that it negligently failed so to place guards. Upon the theory upon which the case was submitted the questions of practicability and negligence were for the jury.

3. The witness Dagnon gave expert testimony as to the character of the machine and the practicability of guarding the knives. It is urged that he was not sufficiently qualified to testify as an expert. He had worked several years about machinery of this kind. We think he was qualified to testify; or at least that the question of his competency was for the court.

4. The plaintiff had considerable experience in work of this and a similar kind. It is claimed that he assumed the risk of his work,, whether his injury came from dull or nicked knives or a failure to guard. We think there is no question of the assumption of risks which survives an adverse finding of the jury.

5. The plaintiff was a carpenter 35 years of age. The injury resulted in the loss of the little finger of his left hand at the knuckle joint and the next finger at the second joint. He is left-handed. The verdict was for $2,000. It is claimed that this amount is excessive but we do not think it is.

Order affirmed.