Kuich v. Milwaukee Bag Co. , 139 Wis. 101 ( 1909 )

, The following opinion was filed March 9, 1909:

Siebecker, J.

It is claimed that the defendant negligently permitted and exacted labor from the plaintiff which she, in view of her tender years, was incapable of performing for want of sufficient physical strength and because of excessive fatigue. The facts disclose, as above stated, that plaintiff had been engaged in operating bag-printing machines and that her work consisted in feeding bags into the printing machines. She had performed this service for several months prior to the day of the accident, and so far as shown performed the service in a proper and competent manner. It appears that throughout this period she showed no want of physical capacity or strength to endure and perform the service. Nor did the fact that she had but one eye seem to affect her ability to properly perform the service. The plaintiff testifies that on the day in question she became extremely fatigued toward the latter part of her working hours and that the sight of her eye became clouded at times. It is urged that this was ■due to the unreasonable exactions of the defendant in demanding that she perform an unreasonable amount of labor in view of her tender years, immature judgment, and want of bodily strength. On the day in question she was put at the task of feeding a larger number of bags into the printing machine in a certain number of hours than theretofore. The manner of doing the work on this day was in all resp.eets the same as had been used in operating other machines, with the exception that this day’s work required her to feed a larger number of bags per hour than she had ever handled theretofore. There is no evidence showing that the rapidity of operation was unreasonable for an ordinarily competent operator. So far as appears, plaintiff performed this service in the usual way during the day. Nothing occurred to apprise her superiors, nor did she inform them, that she was being physically overburdened or that her bodily strength was being exhausted so as to overtax her. The service she performed had been and was being rendered by minors, and the impropriety of engaging plaintiff to perform the service, as not within the compass and skill of minors of plaintiff’s age, intelligence, and bodily strength, is not shown. Erom the facts and circumstances adduced it appears that the defendant exercised .ordinary care with respect to plaintiff in permitting her to work and in keeping her at it at the time of the accident. There is no evidence tending to show that the defendant was negligent in this regard.

Another claim of liability is that defendant negligently omitted to instruct the plaintiff as to the proper way in which to perform her service and to warn her of the danger of having her hand caught in the nippers, and of the consequent liability of being injured by having her hand and arm drawn into the printing machine. This claim is made upon the ground that the danger of having her fingers caught in the nippers and thereby having her hand drawn between the cylinders of the press was not so open and obvious that a person of her age, intelligence, and discretion would be apprised thereof by observation of these parts of the machine and its operation. The contention that she did not know how firmly the nippers would hold her fingers, if seized by them, and that she might well believe she could, if caught, release her fingers without danger, is against the clear and plain inference to be drawn from the facts in evidence. The operation of the nippers in grasping the bags and in holding and drawing them into the machine shows that the operation of this-appliance must be fraught with danger to a person whose fingers might be caught by the nippers. It does not seem that any operator of average intelligence could fail to appreciate-that if his fingers were grasped by these nippers the inevitable consequences would be dangerous to him. The facts cannot reasonably be interpreted to permit of any other inference, and raise no question for solution by the jury. We-perceive no escape from the conclusion that the plaintiff was-charged with knowledge of this obvious situation so presented to her in operating the machine. The evidence is without dispute that she had been engaged in the operation of these printing machines for several months and that she possessed the intelligence and information to understand the danger incident to her work. The employer was therefore not required to instruct her or give her warning as to this danger. This-principle has been applied in numerous instances by this-court, some of which are referred to in Horn v. La Crosse Box Co. 131 Wis. 384, 111 N. W. 522, and Groth v. Thomann, 110 Wis. 488, 86 N. W. 178.

It is also urged that the court erred in directing a verdict for the defendant because the evidence tends to show that it was negligent in failing to guard the feed place so as to prevent her hands from coming in contact with the operating devices at this point, which it is alleged were “so located as to-be dangerous to employees in the discharge of their duty.” The trial court held that the facts and circumstances presented no evidence of such negligence. So far as appears, the defendant operated these printing machines and had the work performed in the usual manner and under the ordinary conditions.

The method of operation, as carried on by the plaintiff under defendant’s direction, must then be examined to determine whether the situation presented was one from which a jury would be warranted in concluding that the defendant negligently had omitted to guard or protect the machine at which plaintiff was working. The evidence is clear that the practical operation of this printing machine requires that the operator have an open and unobstructed field in front of the rotating cylinders, the nippers, and the guides at the edge of the feed board in order that the bags may properly feed into the printing press. It is manifest that the placing of a board across this area in front of rollers and above the nippers, as suggested by appellant, would obstruct the operator’s view and interfere with his manipulation of the work, and thus interfere with and tend to prevent defendant from conducting its business in a proper and customary way. Nor is it manifest that such a guard would be a protection against or lessen the dangers incident to the operation of printing bags. The situation presented by the evidence suggests no such result, and it cannot, therefore, be said that the defendant was guilty of any negligent omission in this regard, assuming, but not deciding, that the provisions of sec. 1636/, Stats. (1898), control the case.

We find no reversible error in the record.

By the Court. — Judgment affirmed.

Timlin, J., took no part.

A motion for a rehearing was denied April 20, 1909.