Allen v. Green Bay Manufacturing Co. , 150 Wis. 545 ( 1912 )

Marshall, J.

Was there any sound basis in the evidence for submitting the cause to the jury on the theory that it was inferable that appellant failed to exercise ordinary care in not informing respondent of the slight trembling of the saw table, and that such fault was the proximate cause of the accident without any want of ordinary care on respondent’s part proximately contributing thereto ? Much as we respect the judgment of the able circuit judge who presided at the trial, we confess that if such basis exist we cannot discover it. We are constrained to hold that the trial judge grievously erred.

The case, as indicated in the statement, was once tried on the theory of negligence in using an uncovered saw. That seems to have been a very logical deduction from the facts. The court decided there was such negligence but that respondent was as much at fault as appellant and, manifestly, assumed the risk. The evidence on the second trial, evidently, did not vary much from that on the first. It only showed, at best in addition, there was a slight trembling of the table, not involving any defect in the machine or its setting or connections ; but causing small pieces of wood to move around ou the saw table, — 'trembling, so insignificant that respondent did not notice it and appellant did not consider it of sufficient importance to call the former’s attention thereto.

The evidence shows that the saw. arbor and connections rested on a solid foundation not attached to the saw table or the floor. Therefore, the trembling must have been communicated from the floor and, probably, was partly caused by the motion of the machinery, in general, of‘the factory. It does not seem possible such trembling could have existed without being observed by respondent, certainly as well as by appellant’s vice-principal. If it caused pieces of wood to move around on the table or backward toward the point of the up-spring of the saw teeth, it was right before respondent’s eyes. He could not have avoided seeing it had he paid any reasonable attention to his surroundings, which by a very familiar rule, he was bound to do or to take the consequences of his negligence. The reason why he could not recover, on the first trial, was because he knew perfectly well the saw was unguarded and was liable to throw toward him any piece of wood which might come in the way of the teeth from the point where they come up through the table to where they turned down in front. Why, then, was there any question to submit to the jury involving mere means by which such interferences were liable to occur so long as the operation of such means was obvious to ordinary attention? It seems quite illogical to hold there was negligence and contributory negligence in the first situation and negligence and no contributory negligence in tbe second. Really, we cannot perceive wby there was negligence at all in failing to inform respondent of that which was a mere incident of his situation and which, with the large experience he had, he must have known as well as appellant’s agent. The evidence shows, very plainly, tljat he was very familiar with the dangers of operating a circular saw without any guard thereon to prevent its throwing pieces of wood. Knowing that, as he did, and knowing as he must have, that' pieces of wood were constantly being accumulated on the saw table and caused to move backward by the slight trembling thereof and the additions in front, it seems quite clear that whatever negligence there was consisted in operating the uncovered saw and that respondent accepted that danger. It follows that the cause should have been taken from the jury as requested by appellant’s counsel.

By the Oowrt.- — The judgment is reversed, and the cause remanded with directions to dismiss the same with costs.