#### Stock, Respondent, vs. Kern, Appellant.

*February 23*

March *15, 1910.*

*Master and servant: Injury ■from, dangerous machinery: Assumption of obvious rislcs: Proximate cause: Burden of proof.*

1. Dangers incident to the operation of a machine which are open and obvious to any person of ordinary intelligence are assumed hy a servant who undertakes the employment of operating it.

2. The fact that a machine whose operation was attended with obvious danger might possibly have been equipped with appliances which would render it less dangerous affords no ground for complaint to one who undertook to operate it, the employer having the right to use such a machine if he thereby violated no positive law and did not expose his employees to hidden dangers.

3. In an action for an injury sustained by an employee while operating an obviously dangerous machine the burden is upon plaintiff to show that the injury was proximately caused by the alleged negligence of the defendant; and proof which is as consistent with a theory that the injury was due to a cause not actionable as with a theory that it was due to an actionable cause is not sufficient to carry the case to the jury.

4. The evidence in this case is *held*not to show a causal connection between the alleged negligence of the defendant in running at a slow speed the splitter saw at which plaintiff was working and the injury to plaintiff occasioned by the turning of a stave holt which he was feeding into the saw and by his hand slipping and coming in contact with the saw.

Appbax from a judgment of the circuit court for Ashland county: JohN K. Paeish, Circuit Judge.

*Reversed.*

This is an action to recover damages for an injury to plaintiff’s right hand, alleged to have been caused by the negligence of the defendant. At the time the injury was received the plaintiff was twenty-eight years old. He had lived on a farm until he was twenty-one, and thereafter had worked one winter in the woods, and subsequently had fired in the Glidden Veneer Factory. Eor five years he had fired in the factory, and when not so busied he worked about the town or in the *220mill as a laborer. He bad worked at a veneer saw in the mill off and on some eight months in all. This was the only machinery, except farm machinery, at which he had worked prior to the time of the accident. The veneer saw was about sixteen inches in diameter. It was used to cut logs into veneer. This was accomplished by putting the log into a vise, when by means of a lever the log and the saw would be brought together and the revolving saw would cut off veneer of the thickness desired.

The defendant’s stave mill and millyard were in the entire ■charge of his foreman, who, on the day previous to that on which plaintiff’s injury was received, employed the plaintiff and offered him his choice of several jobs. Plaintiff chose the job of operating a “splitter” machine, which would pay him best. The foreman had known the plaintiff for several years and had worked in the veneer factory with him. Essentially, the splitter consists of a large circular saw thirty-eight to forty inches in diameter, mounted upon a framework and connected with the power of the mill so as to revolve toward the operator. The saw projects eighteen or twenty inches above the table. Big bolts from the cut-off saw were placed upon the table lengthwise, held firmly by the operator, and pushed by him against the saw. These big bolts, ordinarily ten or twelve inches in diameter, were to be cut into smaller ones and the slabs were to be taken off. The smaller bolts thus produced were of various sizes, depending upon the size of the big bolts which were to be split up.

Plaintiff went to work on the morning of January 22, 1908. An employee of the defendant, while plaintiff was observing him, cut some of the big bolts in order to show the plaintiff how to operate the splitter saw, and plaintiff then went to work. He had worked for a little over an hour when he took up a tamarack bolt, about five and one-half inches in diameter ■and thirteen inches long, to feed it into the saw. He sawed ■about one and one-fourth inches into the bolt, when it turned *221and slipped out of bis band. His band was- thrown against tbe saw. Two fingers were out off, and a third finger, wbicb was cut into, bas become stiffened and cannot be closed.

Tbe complaint alleges negligence on tbe part of tbe defendant in several respects. Tbe maebine is alleged to bave operated defectively by reason of tbe defective character of the-belt by which tbe maebine was connected with tbe power shafting. It is claimed that tbe belt slipped on tbe pulleys by wbicb power was transmitted to tbe maebine, because of the material of wbicb tbe belt was made, and also because tbe belt was too loose, thus causing an irregular movement of tbe maebine. It is also alleged that tbe saw was operated at too slow a speed, and that this rendered the operation of tbe saw more difficult and dangerous to tbe operator and caused bis band to come into contact with tbe saw. Tbe alleged icy condition of tbe bolt which plaintiff was cutting and tbe absence of a guide or a clamp upon the maebine are alleged as negligences on tbe part of tbe defendant

The jury found that tbe plaintiff did not know tbe safe manner of operating tbe maebine; that be bad not been instructed as to such manner of operating it; that the splitter maebine was not reasonably safe as equipped with appliances for operation; that the speed of tbe saw was so slow as to be dangerous; that these various negligences were each a proximate cause of tbe plaintiff’s injury; that tbe plaintiff did not assume tbe risk of the employment; and that tbe plaintiff was entitled to $1,200 as damages. This is an appeal from tbe judgment on tbe verdict.

Eor tbe appellant there was a brief by *Lamoreux, Shea & Gate,*and oral argument by *W. F, Shea.*

*W. Stanley Smith,*for tbe respondent.

SiebecKeb, J.

Tbe jury found that tbe splitter maebine, as equipped and operated, was not a reasonably safe one for tbe purpose for wbicb it was used; that the speed of the saw, *222as operated at the time the plaintiff was injured, was so slow as to render it dangerous to the plaintiff, wlm was operating it; that the plaintiff was ignorant of such dangers; and that the defendant failed to instruct or warn him as to the dangers incident to the operation of the machine. The appellant contends that the court erred in refusing to direct a verdict for the defendant, upon the grounds that there was no evidence showing negligence in any of the respects alleged, and that the plaintiff’s injury resulted from open and obvious dangers incident to the operation of the saw in defendant’s business. The evidence shows that the plaintiff was operating the splitter saw, and that after he had worked a little over an hour feeding it he was running a bolt through the saw, when it turned, his hand slipped, came in contact with the running saw, and was injured to the extent above stated. There is evidence that the operation of the machine, as constructed, was attended with dangers to the operator feeding bolts into the saw, but so far as disclosed these dangers existed in a liability that the operator’s hands would come into contact with the revolving saw while he was feeding it as usual. It is manifest that such dangers were incident to the operation of the machine and were open and obvious to any person of ordinary intelligence. The fact that the machine might possibly have been equipped with guides and carriages and thereby have been rendered less dangerous affords no ground for complaint under the circumstances shown, for the reason that the defendant had the right to conduct his business and use this machine as he did, provided he thereby violated no positive law and did not expose his employees to hidden dangers. Where a servant undertakes an employment under such conditions he assumes all the obvious dangers and hazards. *Guinard v. Knapp-Stout & Co. Co.*95 Wis. 482, 70 N. W. 671; *Faber v. C. Reiss C. Co.*124 Wis. 554, 102 N. W. 1049; *Schmitt v. Hamilton Mfg. Co.*135 Wis. 117, 115 N. W. 353.

It is contended that the evidence tends to show that the defendant was negligent in not running the saw at a sufficiently *223bigh speed to render its operation reasonably safe; tbat the danger incident thereto was hidden and unknown to the plaintiff; that he had not been warned of the danger; and that, since the jury found the default of the defendant in this respect to have been the proximate cause of the injury, the ■defendant must be held to hare been guilty of actionable negligence. If it be assumed that the defendant was negligent in this respect, we still find no established ground showing that the defendant is liable, for the evidence fails to show that such alleged negligence caused plaintiff’s injury. As above stated, the accident was occasioned by the bolt turning while the plaintiff had hold of it and was feeding it into the saw and by his hand slipping and coming in contact with the saw. What caused the bolt to turn and plaintiff’s hand to slip is a matter of speculation and conjecture in the light of the evidence. Plaintiff asserts that it was the slow speed of the saw; but the visible and external facts and the accompanying circumstances fail to show any such causal connection. There is nothing in the nature of the situation or of the surrounding conditions to indicate that the slow speed of the saw turned the bolt or produced a condition which brought about this result. Counsel has not pointed out why or how the speed of the saw turned the bolt and thus produced the injury, nor do we perceive anything in the accompanying circumstances which tends to establish a causal connection between the speed of the saw and the turning of the bolt. We are led to the conclusion that the court erred when the jury were instructed that the evidence permitted of an inference that the slow speed ■of the saw was the proximate cause -of the plaintiff’s injury. The burden rested on the plaintiff to show with reasonable ■distinctness that the injury was proximately caused by the alleged negligent conduct of the defendant

“This burden is not met by proof which is as consistent with a theory that . . . [the injury] was due to a cause not actionable as with a theory that it was due to an actionable •cause, and in such a state of the proof the case fails to come *224within the proper province of the jury.” *Schell v. C. & N. W. R. Co.*134 Wis. 142, 113 N. W. 657; *Hyer v.*Janesville, 101 Wis. 371, 77 N. W. 729.

Upon the record, we are constrained to hold that there was no evidence upon any of the alleged grounds of negligence to earry the case to the jury, and that the motion for a verdict in defendant’s favor should have been granted.

*By the Court.*— The judgment appealed from is reversed,, and the cause remanded with directions to award judgment dismissing the action.