#### Montanye, by Guardian *ad*litem, Respondent, vs. Northern Electrical Manufacturing Company, Appellant.

*November 17, 1905*

January *30, 1906.*

*Master and servant: Actionable negligence: Defective machinery: Abnormal action: Instructions to jury: Court and jury: Special verdict: Cross-examination: Argument of counsel: Prejudicial error.*

1. In an action for personal injuries to a servant, evidence of abnormal action of a machine can only he the basis of an inference tending to show an insufficiency in the construction and repair of the machine as the producing cause of the injury, which is conclusively rebutted by evidence showing that the machine was free from all discoverable defects, and hence, on such evidence alone, no grounds exist on which the jury can find that any defect existed in the machine which the master in the exercise of ordinary care ought to have discovered.

2. Where evidence of alleged defects in a machine would not reasonably admit of an inference that such defects caused the abnormal action of the machine, it is error to refuse a requested instruction, in substance, that the evidence bearing on such defects was not sufficient to sustain a finding that the machine was defective, and that no want of ordinary care could be imputed to defendant with respect thereto as the cause of the injury.

3. Where it is made to appear that the abnormal action of a machine, in the operation of which a servant was injured, might result from a specific defect, and the evidence on the subject is conflicting, the court should submit to the jury the question of the master’s negligence on that ground.

4. In an action for personal injuries received in operating a machine it is not error to refuse to submit, as part of a special verdict, questions covering different phases of the evidence-concerning the nature of the defects, if the machine was found defective in construction or repair, since they required the jury, in answering the general and proper questions respecting the alleged negligence of the defendant, to state the specific grounds for their findings.

6. A master’s duty to a servant requires that he exercise reasonable care in furnishing reasonably safe instruments and that he exercise a like degree of care in making repairs.

*236. A party should not he deprived of his right to cross-examination by so limiting its scope that the value and weight of the evidence given on the direct examination may not he fully tested.

7. In an action for injuries to a servant received in operating a machine, the court, jury, and both parties, on plaintiff’s request and defendant’s assent, viewed and inspected the machine in operation at defendant’s shop. No request was made by plaintiff for the production in court of the machine or any of its parts, and defendant made no offer of it or any of its' parts as an exhibit during the trial. The machine was installed and in use in defendant’s factory, its size and weight evidently made it difficult to transport, and detachment of its parts would prevent its use. *Held,*that it was error to rule that it was justifiable for plaintiff’s counsel to argue that such nonproduction was evidence tending to refute defendant’s claim that the machine was free from all discoverable defects.

Appeal from a judgment of tbe circuit court for Dane county: E. Rat SteveNS, Circuit Judge.

*Reversed.*

Tbe plaintiff entered defendant’s employ on May 2, 1904, and while operating a punch press in defendant’s shops was injured on June 9th following. The defendant is a corporation engaged in the manufacture of electrical appliances. The machine which plaintiff operated at the time of the accident is known as the Bliss Press No. 20. It was installed in defendant’s shops in February, 1902. In so far as the record discloses it was of standard and approved design and construction and such as is in common use by manufacturers. It is operated by an independent electric motor connected with the fly wheel of the press, which revolves upon a shaft that is stationary when the press is not in operation. The main operating parts of the press rest on and are held in place by a heavy frame, and consist of the fly wheel, a crank shaft, a drop punch, a table and die, and the brake. The parts employed in putting the machine in action consist of a treadle, a treadle spring, treadle rods combined with a rocker, a latch to which is joined a latch spring, a trigger, and trigger spring. The trigger is integral with a clutch placed in a groove of the shaft on which the fly wheel revolves. In operating the ma*24chine the communication of powei* from the motor rotates the fly wheel upon the stationary crank shaft. To put the punch in operation the person manipulating the machine presses flown the treadle with his foot. This draws down the lower treadle rod, which is connected with the treadle lever below and the rocker arm above. The rocker arm is thereby depressed, and with it the upper treadle rod attached to the rocker arm at its lower end and to the arm of the latch at its upper end. This movement draws down the latch arm, and throws the latch out of engagement with the trigger. This release of the trigger permits the trigger spring to move the trigger, which turns and throws the clutch out into one of two grooves of the fly wheel, thereby engaging the wheel and the crank shaft, causing it to rotate and the punch attached to the crank of the shaft in turn to drop and rise at each turn of the wheel and shaft. When the machine is running the •shaft makes 120 revolutions a minute, thus making the punch drop at the rate of 120 times per minute while it continues in operation. Upon removal of the pressure from the treadle, the power on the treadle and the rocker arm is reversed by means of a treadle spring, which lifts the treadle lever, and pushing the rods up throws the latch into place so that it will engage with the trigger, thereby disengaging the clutch from the fly wheel, causing the shaft to stop with the crank in an elevated position, and holding the punch suspended above the die table of the press. The stopping of the shaft and the holding of the punch are designed to occur automatically in the normal operation of the press. In using the press for making disks and doing similar work the person manipulating the press places the material on the die, presses the treadle with his foot, and then releases it at once. This drops the punch, raises it again, stops it automatically, and holds it there until it is dropped again by throwing these operative parts of the machine into action again by pressure on the treadle. The dies used are of different kinds to meet the *25various wants for different products. Two of them are attached at a time, oue to the table and another to the punch. The latter drops on to the material placed on the lower and ■stationary one. ' The space between the dies, when the punch is lifted to its full height, is about three inches.

The plaintiff had been employed in several manufacturing ■establishments as an apprentice, and with a view of obtaining practical knowledge of machines and their operation had worked about and with machinery from August, 1902. He had worked with a punch press like the one in question, but of a smaller size. It appears that plaintiff had the intelligence to comprehend his work and to understand in a general way the nature of his employment and the liability to injury from ■dangers apparently incident to it. He received no special instructions concerning the danger incident to running the ■press. He testified that defendant’s department foreman ■showed him how to place the material to be run through the press on the lower die, and to trip the press, and to remove the product with the hands, and that he did the work in the way in which the foreman did it in showing him. This testimony is contradicted by the foreman. Plaintiff states that he worked at the press on Monday, punching copper segments ; that he continued working there on Tuesday, making mica segments until about 9 o’clock in the forenoon, when the punch dropped repeatedly without pressure on the treadle; that he called the foreman’s attention to this abnormal operation, as he.had been instructed to do; that the foreman then ■cut off the power, adjusted some of the parts of the machine, and directed plaintiff to proceed with the work; that he did ■so, and that at the first operation the punch dropped twice without stopping. This occurred in the presence of the foreman, who again made further adjustments and again directed plaintiff to proceed with his task, telling him that the machine was all right. He worked at the press on Wednesday ■until a part of the punch broke. The foreman was notified of *26this, and be removed parts of it for repair, and set plaintiff at other work for tbe remainder of tbe day. On Thursday, June 9th, plaintiff was directed by tbe foreman to work at tbe press making disks, and was assured by him that tbe machine was set up for tbe job and that it was all right. He continued tbe work, with tbe exception of about an hour spent at other work, until 11:15 o’clock, when be tripped tbe press in tbe usual way to cut a disk out of a piece of tin placed in tbe lower die; tbe punch dropped, but tbe lock failed to bold and stop it automatically after being elevated on tbe first revolution, and tbe punch dropped again a second time before stopping, without any pressure having been applied to tbe treadle. Tbe second drop of tbe punch caught bis band, and severed parts of it.

Plaintiff was tbe only person who observed tbe operation, and bis testimony as to tbe second dropping of the punch is as follows:

*“Q.*Now, at tbe time you were injured state whether or not it dropped tbe second time rapidly or slowly. *A.*Dropped rapidly. I bad to put my band under to get tbe work out, and that is tbe position my band was in when tbe punch dropped. I hadn’t bad time to draw my work out.”

On cross-examination, in speaking of tbe abnormal dropping on a prior occasion after tbe foreman bad been notified and bad adjusted parts of the machine, be states:

“After be [the foreman] tried it a couple of times it worked all right, and I went to work. *The first time*I put my foot’ on tbe treadle it dropped again. It did not continue to drop that time; just dropped twice, that is all. *Q. Just the same as it did the time you hurt your hand later? A.*Yes, sir.”

He stated that tbe pieces of tin for making disks, used by tbe foreman in showing him bow to run tbe press and to do bis work, were placed on tbe die with tbe-bands, and that tbe disks were removed by band after the punch bad dropped and returned to its stationary position; that be did tbe work *27in tbis way when be was injured; tbat tbe disks and rims of tin left as waste were of sucb size, shape, and in sucb position on tbe die tbat it was necessary to put bis band under tbe area of tbe cutting die of tbe punch in order to remove them. Tbis is denied by defendant’s experts on tbe subject.

Evidence was also adduced bearing on tbe following questions: (1) Tbat tbe treadle latch attached to tbe frame of tbe machine, over tbe treadle, might possibly have become loosened and momentarily have held tbe treadle down, and after tbe removal of tbe foot from tbe treadle have caused the second drop of tbe punch. ■ (2) Tbat tbe trigger spring and clutch were gummed from accumulations of oil and dust so as to retard, their action and to prevent them from performing their functions in tbe normal operation of tbe press. (3) Tbat tbe treadle rod, leading from tbe treadle lever to tbe rocker arm, was attached to tbe rocker arm by a set-screw, and tbat tbis set-screw was worn loose and was liable to permit tbe treadle rod to slip and move in tbe rocker and result in defective operation of tbe latch by failing to engage tbe trigger, and thereby bringing about tbe regular automatic stopping of tbe punch after it bad dropped and risen. (4) As to tbe absence of a lock nut on tbe set-screw, to bold it in place after being firmly set to bold tbe treadle rod. Proof of abnormal operation of tbe press was given by a number of witnesses besides plaintiff, and was to tbe effect tbat in operating tbe machine at different times before tbe accident it bad made a second drop after the removal of tbe foot from tbe treadle, and tbat defendant’s officers and agents bad been informed of sucb defective operation. Defendant adduced evidence showing tbat tbe machine was of approved design and construction and tbe same as those commonly and generally used by manufacturérs as standard, and adduced tbe evidence of its superintendent, department foreman, and others tending to show tbat tbe machine was free from discoverable defects which might cause tbe defective operation complained of.

*28A number of exceptions were preserved to rulings on evidence, on refusals to submit requested questions in tbe special verdict, on refusals to give instructions and to instructions as .given, and to remarks by plaintiff’s counsel to tbe jury. Tbe particular matters recited in tbe exceptions will be referred to in tbe discussion, so far as may be necessary.

Tbe case was submitted to a jury and tbe following verdict was rendered:

“(1) Was tbe machine in question so defective or out of repair at tbe time of tbe accident as to render tbe punch liable to fall a second time without pressure upon tbe treadle? *Answer.*Tes. (2) If your answer to question No. 1 be Wes,’ then did the defendant have such notice of such defect or want of repair that by tbe exercise of ordinary care and diligence it might have remedied it before tbe plaintiff was injured? *A.*Yes. (3) If your answers to questions 1 and 2 be Wes,’ then was tbe defendant guilty of any want of ordinary care in permitting the use and operation of said machine by tbe plaintiff in tbe condition it then was ? *A.*Yes. (4) Did*the defendant instruct and caution tbe plaintiff before be began work upon tbe machine in question as to tbe dangers incident to its operation? *A.*No. (5) Was tbe defendant guilty of any want of ordinary care in relation to instructing and cautioning tbe plaintiff as to tbe dangers incident to tbe operation of tbe punch press in question ? *A.*Yes. (6) Did tbe defendant provide plaintiff with any tools or appliances for tbe purpose of taking work out of the machine ? *A.*No. (I) If your answer to question No. 6 be ‘No,’ then was tbe defendant guilty of any want of ordinary care in failing to furnish such tools or appliances? *A.*Yes. (8) If your answer to questions 1, 2, and 3 be Wes,’ then was such want of ordinary care on tbe part of tbe defendant in allowing tbe machine to be used in such defective condition or while in want of repair tbe proximate cause of the injury ? *A.*Yes. (9) If your answer to question 5 be ‘Yes,’ then was tbe failure of tbe defendant to instruct and caution the plaintiff as to tbe dangers incident to tbe operation of tbe machine tbe proximate cause of tbe injury ? This question is not to be answered if your answer to question 8 be ‘Yes.’ (10) If your *29answer to question 7 be ‘Yes,’ then was the failure of tbe defendant to fumisb tbe plaintiff with tools and appliances for the purpose of taking the work out of tbe machine tbe proximate cause of tbe injury? If you answer questions 8 or 9' ‘Yes,’ tbis question should not be answered. (11) Was there any want of ordinary care on tbe part of tbe plaintiff which contributed to produce the'injury ? *A.*No. (12) Did tbe plaintiff assume tbe risk incident to tbe operation of tbe machine in tbe manner in which be operated it? *A.*No. (13) What sum will compensate tbe plaintiff for tbe injury which be suffered ? *A.*$5,000.”

Defendant moved to strike out tbe affirmative answers to questions 1, 2, 3, 5, 7, and 8 because they were contrary to tbe evidence, and that tbe court answer them in tbe negative; also to strike out tbe negative answers to questions 11 and 12 because they were contrary to tbe .evidence, and that tbe court answer them in tbe affirmative; and for reduction of tbe damages found, as not supported by the evidence. Tbis motion was denied and exceptions taken. Defendant also moved for a new trial upon tbe grounds covered by these specific exceptions. Tbis was denied. Judgment was awarded in plaintiff’s favor on tbe special verdict for tbe amount assessed as damages and for costs. Tbis is an appeal from such verdict.

Eor the appellant there was a brief by *Olin & Butler,*and oral argument by *M. L. Butler.*

Eor tbe respondent there was a brief by *Gilbert & Jacleson,*and oral argument by *Bussell Jackson.*

Tbe following opinion was filed December 12, 1906:

SiebecKeb, J.

It is urged that there was no evidence showing negligence in tbe particulars alleged. Defendant claims that the accident is alleged to have occurred through tbe abnormal dropping of tbe punch, with tbe application of pressure to tbe treadle after tbe punch bad returned to its stationary position, that it then dropped unexpectedly, and thereby caused tbe injury. Plaintiff’s counsel contest tbis *30claim in tbeir oral argument tbougb tlieir brief seems to go upon tbis theory. The question must be settled by the facts actually disclosed by tbe evidence. The record shows that plaintiff is the only person who speaks on this subject, and his statement is directly to the effect that the abnormal action of the machine at the time of the accident consisted in the second revolution of the crank shaft and a second dropping of the punch, without its automatically assuming a stationary position between the drops after the pressure had been removed from the treadle. Upon this basis of fact the question arises, Does the proof tend to show actionable negligence ? Defendant contends that it does not, upon the ground that the only evidence of negligence presented is that of the alleged abnormal operation of the machine at the time of and at times previous to the accident. A number of persons testified that from several months to some days before the accident, while they had operated the punch or had seen it operated by others, it had unexpectedly failed 'in its automatic and regular action to take the normal stationary position after removal of pressure from the treadle, and had made one or more continuous abnormal drops. There is evidence tending to show that the shop foreman’s attention had been called repeatedly to this abnormal action before the accident, and that he sought to remedy it by readjustment of its operating parts, and that he assured the person manipulating the press that it was in a proper condition for use. Considerable evidence was adduced to the effect that this press was of standard and approved design, and was in common and general use by manufacturers for purposes like to those for which this one was being used by defendant; that, so far as defendant’s agents and servants knew, ’it operated properly before •and from and after the time of the accident. It is urged that this state of the evidence of abnormal action of the machine can only be the basis of an inference tending to show an insufficiency in the construction and repair of the machine as the *31producing cause of tbe injury complained of; tbat tbis was conclusively rebutted by tbe evidence showing tbe machine was free from all discoverable defects; and tbat therefore no grounds exist on which the jury could find that any defect existed in the machine which the defendant in the exercise of ordinary care ought to have discovered. The rule of law invoked by defendant as controlling upon this branch of the case has been observed and adhered to in numerous decisions of this court. In *Vorbrich v. Geuder & P. Mfg. Co.*96 Wis. 277, *71*N. W. 434, speaking of this subject, the court said:

> “Undisputed proof of freedom of the machine from all discoverable defects, either in construction or repair, effectually overcomes any inference or presumption arising from the happening of the accident, so as to leave no question in that regard for the jury.”

See, also, cases cited, and *Groth v.*Thomann, 110 Wis. 488, 86 N. W. 178; *Klitzke v.*Webb, *120*Wis. 254, 97 N. W. 901.

Plaintiff produced evidence tending to show that the operation of the clutch and trigger spring was interfered with by the gumming of these parts; that there was a wearing and loosening of the set-screw in the rocker arm holding the treadle rod; that this screw was not fastened by a lock nut; and that the treadle latch operated defectively, and claims that these defects in the construction and repair of the press were the cause of the accident; and that defendant could have discovered them in the exercise of ordinary care. It is obvious that the gumming could in no way cause the abnormal dropping of the punch, because its only effect would be to prevent engagement of the clutch and fly wheel; until this occurred the punch would be stationary. The specified abnormal action of the punch must result from a failure to disengage the clutch and fly wheel, and to this the gumming could in no way contribute. The theory that the absence of the lock nut on the set-screw, and the way the tréadle latch was fastened up to prevent it from holding down the treadle, thereby causing *32the punch to continue in action until it was removed, could in any way have caused the abnormal action complained of, is not sustained by the evidence. The evidence on these points would not reasonably admit of an inference that these alleged defects caused the abnormal action. Such an inference is mere conjecture and falls far short of the reasonable certainty required to show the real cause of the accident. As to these alleged grounds of negligence the court should have instructed the jury, as requested, that the evidence bearing on them was not sufficient to sustain a finding that the machine was defective, and that no want of ordinary care could be imputed to defendant with respect thereto as the cause of the injury. The failure to give the requested instructions or their equivalent was error. It permitted the jury to predicate their finding upon any or all of these phases of the evidence, and therefore renders the result of the trial inconclusive, in that the jury may have founded their finding of negligence upon a ground not supported by the evidence. *McClarney v. C., M. & St. P. R. Co.*80 Wis. 277, 49 N. W. 963; *Davis v. C., M. & St. P. R. Co.*93 Wis. 470, 67 N. W. 16, 1132.

The remaining alleged specific defect of the machine pertains to the worn and loose condition of the set-screw and treadle rod. There is evidence tending to sustain the claim that these conditions existed at the time of the accident. It is strenuously urged by the defendant that there is no explanation as to how these conditions could cause the abnormal action of the punch. We axe led to the conclusion that it sufficiently appears from the evidence of witnesses qualified to speak on the subject that the looseness of the set-screw and the slipping of the rod in the rocker arm, when the operating parts of the machine were engaged in tripping and automatically arresting the punch and holding it in its stationary position, might cause the failure of the latch to return to its position and to engage the trigger at its first revolution, and thus by permitting two or more revolutions of the crank shaft *33cause tbe unexpected drop of tbe punch after tbe pressure on tbe treadle bad been removed. Some of tbe defendant’s experts admitted that if tbe latcb failed to return quickly tbis abnormal action might follow. Since it was made sufficiently apparent that tbe slipping of tbe treadle rod in tbe rocker arm, on account of tbe imperfect set-screw, might result in not returning tbe latch to such a position as to engage tbe trigger, tbis question should have been submitted to the jury upon the conflicting evidence on tbe subject, and tbe court should have submitted tbe inquiry of defendant’s negligence upon this ground.

An exception is urged to tbe refusal of tbe court to submit questions covering different phases of tbe evidence concerning tbe nature of tbe defects, if tbe machine was found defective in construction or repair. We think they were properly refused, because they required tbe jury, in answering tbe general and proper questions respecting tbe alleged negligence of defendant, to state the specific grounds for their findings. Ma*uch v.*Hartford, 112 Wis. 40, 87 N. W. 816, and cases cited.

Error is assigned upon instructions given defining the measure of tbe master’s duty. Tbis duty requires that be exercise reasonable care in furnishing reasonably safe instruments, and that be exercise a like degree of care in making repairs: Another exception of tbis nature pertains to tbe definition of ordinary care of tbe defendant as such care as is exercised by ordinarily careful and prudent persons of plaintiff’s áge, intelligence, experience, and knowledge^ Tbe court manifestly misapplied tbis definition to tbe defendant, when it was intended to refer to plaintiff. Tbe error is not likely to occur on another trial.

Tbe exceptions to rulings on evidence relate mainly to infringements on tbe rights of cross-examination. Since'a new trial must be granted, discussion of them is unnecessary. Tbe exceptions do not present questions which show a mistaken *34view of tbe principles, but relate to the application of well-established principles in the particulars suggested. The cross-examinations by defendant appear' to have been too much restricted. A party should not be deprived of this right by so limiting the scope of the cross-examination that the value and weight of the evidence given on direct examination may not be fully tested.

It is further contended that counsel was permitted to indulge in improper argument to the jury, over defendant’s objection. It appears that plaintiff 'requested a view of the machine at defendant’s shops, and that this was assented to by the defendant; that the court, the jury, and counsel for both parties viewed and inspected the machine in the shop, and that it was operated at plaintiff’s request in their presence; that plaintiff did not request the production of the machine or of any of its parts in court; and that defendant made no offer of it or of any of its parts as an exhibit during the trial. The machine was installed and in use in the factory; its size and weight evidently made it difficult to transport, and detachment of its parts would'have prevented its use. Under these circumstances plaintiff’s counsel argued that such absence of the machine and its detachable parts was evidence tending to show the defendant guilty of the negligence ^charged. The court upon objection to such comment ruled •that defendant had the right but was not compelled to produce the machine, and that counsel justifiably argued that •.such nonproduction tended to refute defendant’s claim that the machine was free from all discoverable defects. The seri>ous effect of such comments before a jury is perfectly obvious. Was it proper argument under the circumstances *%*We cannot regard it as within the field of legitimate argument. It is a charge that defendant withheld evidence which would have supported plaintiff’s claim and have refuted defendant’s ■claim concerning the condition of the machine. Such an imputation was refuted by defendant’s conduct in freely sub*35mitting to a full inspection of the machine and the operation ■of it in the presence of the jury and the opposite party and his counsel. It is not suggested that plaintiff was, in any particular, deprived of the fullest opportunity to examine the machine; nor did he ask that it or any of its parts be produced by defendant as an exhibit upon the trial It appears that defendant had done everything within reasonable requirement to .expose the machine to the view of the court and the jury as evidence of its condition at the time of the accident, and this conduct fully rebutted any presumption that it withheld the machine or any of its parts as evidence from sinister motives. The proceeding complained of was highly prejudicial under the circumstances, and constituted reversible error. *MacCarthy v. Whitcomb,*110 Wis. 113, 85 N. W. *707,*and cases cited; 1 Wigmore, Evidence, § 285 *et seq.; Bates v. Morris,*101 Ala. 282, 13 South. 138; *Crawford v. State,*112 Ala. 1, 21 South. 214.

Error is assigned-upon the refusal of the court to direct a verdict in defendant’s favor upon the ground that under the undisputed facts it appeared that plaintiff had assumed the risk of this injury as incident to his employment and that he was guilty of contributory negligence. Upon this question the justices are equally divided in opinion. In accordance with the established practice in the treatment of such a situation no opinion will be filed on this question.

*By the Court.*— Judgment reversed, and the action remanded for a new trial.

A motion for a rehearing was denied January 30,1906.