
    Dougherty, Respondent, vs. West Superior Iron & Steel Company, Appellant.
    
      September 11
    
    
      October 2, 1894.
    
    
      Master and servant: Personal injury: Contributory negligence: Court and jury: Assumption of risk: Command of foreman.
    
    1. In an action for personal injuries, where contributory negligence was alleged in the answer and the question was largely one of inference from the facts in evidence, the failure to submit that question to the jury was a material error.
    2. Plaintiff, an employee of defendant, was injured while making cores to be used in casting iron pipe, by having his hand caught in hay which he was putting upon a revolving spindle driven by steam. Upon the evidence showing, among other things, that ho was twenty-eight years old, and was familiar with the way in which the work was done, and had worked for the defendant about fifteen months in making cores upon a machine run by hand; that the velocity of the spindle driven by steam was not materially greater than that of those turned by hand; and that the danger of having bis hand caught was obvious — it is held that such injury was one of the ordinary risks of the employment assumed by the plaintiff, and hence that he cannot recover for the injury.
    3. The fact that plaintiff had objected to working on the spindle driven by steam, and had done so only because told by defendant’s foreman to “ go there or get out,” does not obviate the objection to a recovery, founded on plaintiff’s assumption of the risk.
    APPEAL from the Circuit Court for Douglas County.
    This action was brought by the plaintiff to recover damages sustained by him while in the defendant’s employ, in and about its steel works, in making- cores to be used in casting iron water pipes. The claim in the complaint, in substance, is that he was employed to work in making special cores by hand power, and that Burns, the manager and foreman of said works, and having power and authority over the defendant’s employees to hire and discharge them at pleasure, negligently and carelessly commanded him to work at a machine for making cores, run by steam power, which was dangerous and unsafe in that the party working on it was liable to have his hands caught by hay which he was obliged to feed and hold so that it might be-wound around a spindle revolving with great velocity, and thereby be broken; that Burns knew the dangerous character of the machine, and carelessly and negligently failed and neglected to inform the plaintiff thereof, though Burns knew the danger and appreciated the risk to which he exposed the plaintiff; that it was a more dangerous machine-than the one on which he had been employed, and from-which he was taken; that the plaintiff was ignorant of the-dangerous character of the machine, and inexperienced at that class of work, and did not know or appreciate the-danger or risk incident thereto; that he went to work as directed, and after working about two hours, and while in-the exercise of duo care, and without any fault or negligence on his part, his right hand was caught in the machine and wound around the spindle, and both bones in his forearm were broken, etc., to his damage. The defendant denied most of the allegations of the complaint, and alleged that the plaintiff was injured by reason of his careless and' negligent conduct, and without fault, carelessness, or negligence on the part of the defendant.
    It appeared at the trial that the plaintiff, after working about the defendant’s works four or five months, was put to work making special cores about October, 1890. He bad to “ hay ” the iron spindles, which were about four feet long, and the cores were of foiw, six, eight, and ten inches-in diameter. The spindles were placed on iron trestles set at each end, and were turned by hand by means of a crank on one end, and he pnt the hay on while they wTere in motion. For anything over six inches the hay was put on in ropes. The one “baying” the spindle took the hay between bis legs, and put it on, going l-ight along with it the-length of it, while the man was turning the spindle. Burns,. defendant’s foreman, told him he wanted him to go and work with Adams on the end of the six-inch gang, where the spindles were made to revolve by steam power, in the building called the “ core sheds,” and they “ ropecl ” thirty eight-inch spindles that morning, and commenced to “ bay ” six-inch spindles. He testified: “I started to work on the end of the spindle, and Adams in the- middle of it, and I got the hay around it when the spindle was going around. I put the hay on, and put my hand out to get it bound after it had gone around, and it caught my hand and drew it right in and broke my hand in two places. Burns did not give me any instruction in reference to it, — • how to work it. I didn’t know while working at that machine that it was dangerous; didn’t know that my hand was liable to be caught and drawn in by the hay while the spindle was revolving; wasn’t aware nor did I appreciate any danger while working at that machine, nor at any other time. I objected to going to work on the machine when he ordered me to do so; told the foreman I didn’t understand the work and I thought it was too heavy for me. We had to carry the six-inch spindles and handle the mud, and I thought it was too heavy for me, and I told him I thought I couldn’t do the work. He said to me, 4 Either go there or get out.’ The spindle doesn’t come in contact with any other object.' You keep your hand on top to keep the hay on until it catches, and go right along and put on a little at a time until you get it covered. After the hay catches there is a certain impetus. As the spindle turns around you get the hay on it. There is a ‘strike,’ which is a board where you put the mud on. It is the same kind of a ‘ strike ’ used in making special cores. I know of the machine used in making special cores. It is not the same kind of machinery that I was working on the day I was injured, but it is the same in shape.” It was shown that the board called a “strike” was supported by the trestles on which the spindle rested, and was on the opposite side from where the man stood while “haying” the spindles for six-inch cores, and was used to put mud on the cores after they had been properly “hayed.”
    The plaintiff, when injured, was twenty-eight years of age, and had worked at a. foundry in New Jersey seventeen months, where he testified that they made a vast amount of pipe in the same way as'in the defendant’s plant; and he worked at making and “ hajdng ” special cores about fifteen months before he was hurt, March 18, 1892, on a machine turned by hand ; and that they made cores on the spindles run by steam about the same way they made special cores. The spindles revolve in the same general way as when run by hand, only faster, that was all. In making cores by hand he had to stop until he would get the hay wound around the spindle and fastened, and then would tell the man that turned it to go ahead. “When I got hurt I put the hay around the spindle, and it had caught and was revolving quite rapidly, and I was distributing the hay. My hand got caught in the hay, and it drew my hand over and down to the ‘ strike.’ The left hand was on top of the spindle, and the right under it. My hand was drawn in from underneath. My arm was broken before it came to the ‘ strike.’ I knew that the spindle was revolving at the time.” He further testified that in “ roping ” cores that morning he put the rope on the spindle while in motion, and the rope was put on in the same general way the hay was; that he did not then know whether it was safer to fasten the hay before the spindle started or not, and he had not worked in the building before that morning where the spindles were run by steam.
    Evidence was given on the part of the plaintiff showing that no instructions were given him as to how to do the work; that when the spindle is turned by hand the operator can call to the one who turns, and stop it, if he gets his fingers caught; that when turned by steam it is stopped by treadles on the side where the “ strike ” is, but in “ haying ” six-inch cores he stands where there are no treadles within reach with which to stop it; that there was nothing wrong about the machine; that when' run by steam the spindles ran sometimes faster and sometimes slower than when run by hand; that in using steam power there is a slow movement and a fast movement, the slow movement being uniform, and the fast nearly so; and that there are times when the movement by hand is faster than the fast movement by steam, but it would not hold out so long.
    After the plaintiff rested the defendant moved for a non-suit, which was denied. At the close of the evidence the defendant asked the court to direct a verdict in its favor, but this' was refused. In answer to questions submitted the jury found that the plaintiff did not have sufficient experience in the kind of employment he was engaged in when injured to enable him, by the exercise of ordinary care and diligence, to know and appreciate the dangers incident thereto; that the accident was the result of the usual and ordinary risks thereof; that he did not comprehend them, and did not have reasonable means of knowledge thereof; that there was a want of ordinary care on defendant’s part in setting him at work without informing him of .the risk incident to such work; that this was the proximate cause of tbe accident; and -that there was no want of ordinary care on the defendant's part that contributed to produce the injury he received. Ho instructions were given to the jury on the subject of contributory negligence on the part of the .plaintiff, but there was an instruction given, probably intended for that purpose, but it W’as rendered of no effect by the use of the word “ defendant ” for that of “ plaintiff,” as in the last part of the special verdict. After the jury had been discharged the court requested defendant’s attorneys to consent to the reassembling of the jury and the submission of the question of contributory negligence, but consent was refused. The motion for a new trial was denied, and the plaintiff had judgment for the damages awarded, $10,000, from which the defendant appealed.
    For the appellant there was a brief by Boss, Dwy&r db JTanitch, and oral argument by W. j9. Dioyer.
    
    
      John Brennan, for the respondent.
   Pinnby, J.

1. The defendant insisted by ifs answer that the plaintiff’s injury was caused by negligence on his part contributing to the result, and as the question of negligence on the part of either party to such actions as the present is often, as in this case, largely one of inference from the facts in evidence, the court should, we think, have submitted to the jury the question whether the plaintiff was guilty of negligence on his part contributing to the injury of which ho complains. That the jury were not instructed on this point, and that there was no finding upon it, seems to have been the result of inadvertence; but the absence of such a finding is an error, in the state of the record before us, that is fatal to the judgment and renders its reversal necessary.

2. The case was fully argued on the merits, and as it is probable that the evidence on another trial will not be materially different from that now presented, it is manifestly proper to consider the question whether the case should have been submitted to the jury at all. It is perfectly obvious, as found by the jury, “that the accident was the result of the usual and ordinary risks of the employment he was engaged in,” and equally so that in the exercise of common sense and ordinary prudence he must have known and appreciated the risk of the employment, and therefore must be held to have assumed such risk upon entering upon the work in which he was engaged when injured. He waa at the time twenty-eight years of age, and we must assume that he was a person of ordinary intelligence; and it appears that he was familiar with the manner in which the work was performed, haring observed it for a considerable time in a like manufacturing plant in New Jersey, where he says the work was performed as in the defendant’s plant, lie had, besides, worked at making cores for sixteen months or more for defendant where the spindles were turned by hand, and had observed somewhat the way in which they were made when turned by steam. He does not claim' that he was ignorant on this subject. It is simply preposterous and incredible that, with his knowledge and experience, he did not know that his hand was liable to be caught and drawn in by the hay he was feeding while the spindle was revolving. The facts open to the most casual inspection were sufficient, to admonish a person of ordinary intelligence of such danger. It may be that he meant to convey the idea that his hand was unexpectedly caught in the hay and drawn in, whereby it was injured, but that fact of itself would afford no ground of liability on the part of the defendant. It is not claimed that the so-called machine was defective in any respect, or ivas imperfectly constructed. On the contrary, it ivas a, very simple device, and there was nothing complicated, obscure, or concealed in respect to its use or operation. "Whatever of risk or danger there was in the work he was ordered to do at the time was open and plain to the most ordinary comprehension, and ho was a man of mature years, with the knowledge and experience stated. There was no reason on the part of the defendant to suppose that he needed either admonition or instruction as to the danger or the method of doing his work, and there was no claim in the evidence, or made at the argument, that any particular or special instruction was either necessary or usual. We are clear that there is no evidence whatever justifying any imputation of negligence to the-defendant in this respect, or for setting him at work on a spindle driven by steam power, the velocity of which it appears was not very materially greater than when turned by hand, and in respect to which he had had an extended practical experience. If any risk or danger there was in the employment, it was plain and open to observation upon the most casual inspection. lie cannot, therefore, now be-heard to say that he was not aware of, and did not appreciate, the danger. It certainly was not necessary to tell him that, if he allowed his hand to be caught in the haj^ just where it was being wound around the spindle, there was danger that it would be seriously injured. Common' sense would suggest that from the condition of affairs open to his observation. Crowley v. Pacific Mills, 148 Mass. 228; Linch v. Sagamore Mfg. Co. 143 Mass. 206; Russell v. Tillotson, 140 Mass. 201; Kean v. Detroit C. & B. R. Mills, 66 Mich. 277. We must hold, therefore, upon the facts of the case and the well-settled rule of law applicable to< them, that the injury the plaintiff 'received was from one of the ordinary risks of the work he was engaged in, and-that upon entering upon the work by direction of the foreman and under the circumstances stated, he assumed the risk, and is therefore not entitled, upon the facts shown, to-recover in this action. The cases in this court are too numerous and too plain to justify further discussion. Burnell v. West Side R. Co. 87 Wis. 387; Corcoran v. Milwaukee G. L. Co. 81 Wis. 191; Showalter v. Fairbanks, Morse & Co., post, p. 376; Naylor v. C. & N. W. R. Co. 53 Wis. 661 ; Johnson v. Ashland Water Co. 77 Wis. 51; Paule v. Florence M. Co. 80 Wis. 350; Goltz v. M., L. S. & W. R. Co. 76 Wis. 136; Haley v. Jump River L. Co. 81 Wis. 421; Cole v. C. & N. W. R. Co. 71 Wis. 114.

The fact that Burns, the foreman, told the plaintiff, whem he objected to working on the spindles driven by steam,. “ Either go there or get out,” does not obviate the objection to the plaintiff’s right to recover. If an employee of full age and ordinary intelligence, upon being required by his employer to perform duties more dangerous or complicated than those embraced in his original hiring, undertakes the same, knowing their dangerous character, although unwillingly, from fear of losing his employment, and is injured by reason of his ignorance and inexperience, he cannot maintain an action therefor against his employer. Leary v. B. & A. R. Co. 139 Mass. 580; Bradshaw’s Adm’r v. L. & N. R. Co. (Ky.) 21 S. W. Rep. 346; Woodley Metropolitan R. Co. L. J. 46 Exch. Div. 521. Whatever danger or peril there was in the work he was ordered to do was, as already observed, plain and obvious. His objection to doing the work was not that it was dangerous, but that he did not understand it, and particularly that he was not strong enough to handle the cores. But, if he saw and understood that the work was of a dangerous character, it, was his duty to decline the employment.

Eor these reasons it is plain that the recovery cannot be sustained.

By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.  