
    Strosin, Appellant, vs. Wisconsin River Paper & Pulp Company, Respondent.
    
      April 11
    
    April 29, 1913.
    
    
      Master and servant: Injury from machinery: Contributory negligence.
    
    Plaintiff, tlie operator of a barking machine in defendant’s mill, instead of using a stick with which he might safely have dislodged the refuse material which clogged a spout leading from the knives of the machine, thrust his hand into the spout so far that it came in contact with the revolving knives and was injured. The jury having, upon sufficient evidence, negatived his claim that defendant’s foreman had assured him there was no danger in cleaning the spout by hand, the trial court properly held that plaintiff was, as a matter of law, guilty of contributory negligence.
    Appeal from a judgment of tbe circuit court for Portage county: Bybon B. PaeK, Circuit Judge.
    
      Affirmed.
    
    Action for a personal injury.
    Plaintiff, when injured, was about twenty-one years of age. He bad a fair education for a country boy accustomed to much manual'labor. He bad lived most of tbe time on bis father’s farm near Stevens Point, but worked in tbe woods in various kinds of operations, including that of attending a somewhat similar machine to tbe one by which be was injured. He bad worked at tbe particular machine, called a band barker, for a sufficient length of time to understand its operations. Tbe purpose thereof was to remove bark from bolts of pulpwood. Tbe bolts were about two feet long. Tbe machinery which did tbe mischief was covered, except where necessarily left open to receive tbe bolts. There was a disk, armed with knives, which, in service, revolved at great speed. It was back of thé opening through which the bolts were put by hand and pressed up so as to engage the knives. As the bark was sheared off, it was driven by a draft created by a fan into a nine-inch iron spout for some eleven inches, thence into a galvanized iron pipe about twenty-four inches, thence following the course of the pipe, down through the floor. There was an opening in the galvanized pipe, about four inches wide by six inches long, near the iron pipe and some seventeen inches from the disk. Through this opening, in case of the pipe clogging with refuse, the operator had to reach with his hand or some other instrument, and remedy the difficulty. This could be done without danger by using a stick, or doing the work with the hand when the machine was at rest. It was dangerous to otherwise do it by hand, unless care was used not to insert the hand far enough to come in contact with the back of the revolving disk or the fan which created the current of air. Plaintiff knew of the danger, but was accustomed, notwithstanding, to clean the barker by hand. He had worked at the particular machine but a short time before the injury, though he had worked at a machine doing similar work, called an automatic barker. A hook was customarily used on that in the cleaning operations, in case of such operations being conducted while the machine was at speed and in service; but the hook could not be so used on the hand barker. The foreman was opposed to having the operator shut down the machine to do the cleaning. On the occasion before the particular one, as plaintiff testified, when he was about to stop the machine to enable him to clean the pipe, the foreman objected, upon the ground that the cleaning could be done while the work was going on. Plaintiff claimed to have been directly assured that there was no danger in cleaning out the spout by hand and that the foreman stood hy and saw him do it that way. The latter denied that and was corroborated. When the spout was cleared of the debris the clearance would be indicated by the outward air current from the fan. On the next occasion for cleaning the machine, the refuse was so packed in the pipe that plaintiff made two insertions with his hand without dislodging it. He made a third effort -and, by some unexpected movement, bis fingers engaged tbe fan or disk and were taken off at tbe second joints.
    Tbe claim of plaintiff was that be thought, left to himself, it was dangerous to clean tbe barker by band when tbe machine was in motion, but did so upon tbe assurance that it •was safe to do it.
    Tbe jury decided thus: Tbe foreman did not assure plaintiff there was no danger in cleaning the pipe while tbe barker was in motion. Defendant was negligent in failing to instruct plaintiff as to cleaning tbe barker. Such failure was a proximate cause of tbe injury. Defendant negligently failed to warn plaintiff of tbe danger of cleaning tbe barker, as be did. Such failure was a proximate cause of such injury. Plaintiff was free from contributory negligence.. If be is entitled to recover at all be is entitled to $1,400.
    On motion for judgment tbe trial judge expressed himself as having been, from tbe time tbe evidence was closed, of tbe opinion that, except for plaintiff’s evidence that tbe foreman assured him there was no danger in cleaning tbe barker by hand when it was in motion and that be relied thereon, defendant was entitled to have a directed verdict, and tbe jury having found against plaintiff as to such matter, tbe evidence indicated contributory carelessness notwithstanding tbe verdict to tbe contrary on that precise question. The judge gave bis reasons in these words:
    “The plaintiff testified that be knew that if bis band came in contact with tbe revolving disk of tbe barker be would be injured. Any person of any ordinary intelligence would know and realize that injury would certainly follow if be thrust bis band in tbe blow-pipe far enough to reach tbe disk while tbe barker was in motion. Tbe plaintiff is apparently a person of ordinary intelligence. Tbe plaintiff knew that all tbe bark and shavings from the spruce sticks were blown out of tbe barker into tbe pipe. The door in tbe pipe was, according to tbe plaintiff, eleven inches from tbe barker, according to tbe defendant sixteen inches. The plaintiff bad to extend his hand into the pipe from eleven to sixteen inches to reach the revolving disk, and this he carelessly did, notwithstanding he knew to do so meant injury to his hand.”
    Judgment was ordered thereon dismissing the complaint with costs.
    For the appellant there was a brief signed by A. L. Smongeski, attorney, and Kreutzer, Bird, Bosenberry & Okoneski, of counsel, and oral argument by Mr. Bmongeski and Mr. C. B. Bird.
    
    For the respondent there was a brief by Weed & Hollister, and oral argument by R. A. Hollister.
    
   Marshall, J.

The trial court seems to have been guided by principle, as illustrated by numerous precedents in this court, holding that plaintiff was clearly guilty of contributory negligence in thrusting his hand into the spout up to a point where it was liable to engage the dangerous machinery which severed his fingers, unless he did so on the express assurance of the foreman that the work could be safely done that way. The respect due that decision precludes us from reversing it.

So the case must turn on whether the assurance was given as plaintiff claims. The court below, through abundant caution, submitted the conflicting evidence in respect thereto to the jury, resulting in a finding in defendant’s favor. Why that should not be regarded a verity, is not suggested. On the contrary, it seems to be conceded, as the fact is, that the case must be dealt with as if the claim of plaintiff in respect thereto, is not true. From that viewpoint, as indicated in the statement, we have the opinion of the trial judge, that the evidence as matter of law, shows that plaintiff proximately contributed to the event complained of. We are unable, on principle, to override that decision.

By the Court. — Judgment affirmed.

Timlin, J., dissents.  