#### Hoffman, by guardian *ad*litem, Respondent, vs. Rib Lake Lumber Company, Appellant.

*September 12*

September *29, 1908.*

*Master and servant: Injury from uncovered gearing: Questions for jury: Negligence: Contributory negligence: Special verdict: Evidence: Immaterial error: Excessive damages.*

1. In an action for injuries to a minor employee caused by bis coming in contact with an exposed gearing in defendant’s sawmill, tbe evidence is *held*to sustain findings in a special verdict that such gearing was so located as to be dangerous to employees in tbe discharge of their duties, that it was not securely guarded or fenced, that defendant was guilty of negligence in that respect, and that plaintiff was not guilty of contributory negligence.

[2. Whether sec. 1636;', Stats. (1898), — providing that gearings so situated “shall be securely guarded or fenced,” — imposes upon the employer an absolute duty to keep them so guarded, is not determined.]

S. A question in the special verdict, “Did the plaintiff in any manner fail to use ordinary care which proximately caused or contributed to produce the accident?” which the jury answered “No,” is *held,*in the light of the charge to the jury, to have been understood and answered by them as if it read, “Did the plaintiff in any manner fail to use ordinary care, which *failure*proximately caused or contributed to produce the accident?”

4. Error in permitting a witness who had worked in five or six different sawmills to testify that gearings therein in situations similar to that of the gearing in question were covered was not prejudicial, defendant’s duty to cover the gearing in question being imposed by statute.

5. An award of $5,000 for injuries to a b'oy, whose leg was lacerated for a distance of fourteen to sixteen inches between the knee and hip and a portion of the muscle of his thigh torn out, and the use of whose leg was permanently impaired to a great degree, is *held*not excessive.

Appeal from a judgment of tbe circuit court for Wood county: Chas. M. Webb, Circuit Judge. *389*Giiy B. Co.*110 Wis. 461, 86 U. W. 153; *Howard ¶. Bel-derwille L. Go.*129 Wis. 98, 108 LT. W. 48; *Garey v. C., M. & St. P. B. Go.*61 Wis. 71, 20 LT. W. 648;. *Upthegrove v. Jones & A. G. Co.*118 Wis. 673, 96 U. W. 385; *Bigelow v. Danielson,*102 Wis. 470, 78 U. W. 599; Vilas, Special Verdicts, § 25.

*388*Affvrmed.*

*Charles A.*Vilas, for tbe appellant, cited, among other' authorities, sec. 1636;, Stats. (1898); *Powalshe v. Cream*

*389Eor the respondent there was a brief by *E. O. Pors & D. D. Gomvay,*attorneys, and *Geo. L. Williams,*of counsel, and oral argument by *Mr. Gonway*and *Mr. Williams. '*

Among other references upon the part of the respondent were the following: *Bevolinshi v. Adams O. Co.*118 Wis. 324, 95 1ST. W. 122; *Grant v. Keystone L. Go.*119 Wis. 229, 96 1ST. W. 535; *Kelleher v. M. & H. B. Go.*80 Wis. 584, 50 1ST. W. 942; Nadau¡ *v. White B. L. Go.*76'Wis. 120, 43 1ST. W. 1135; 20 Am. & Eng. Ency. of Law (2d ed.) 147; *Bes-•sex v. 0. & N. W. B. Go.*45 Wis. 477; *Ewen v. G. & N. W. B. Go.*38 Wis. 613; *Jensen v: Hudson S. Go.*98 Wis. 73, 73 U. W. 434; *Baxter v. G. & N. W. B. Go.*104 Wis. 307, ■80 TT. W. 644; *Mauch v. Hartford,*112 Wis. 40, 87 1ST. W. ■816.

TiMxirr, J.

The plaintiff, an infant employee of defendant, recovered in the circuit court for Wood county judgment for $5,000 damages for personal injuries incurred by plaintiff coming in contact with an exposed gearing in the defendant’s sawmill. A jury by special verdict found the facts generalized as follows: At the time the plaintiff was injured he was acting within the scope of his ordinary duties as employee and at a place at which he was directed to work by the assistant foreman. The gearing in which plaintiff was caught was so located as to be dangerous to plaintiff and other employees of defendant while performing like services and while in discharge of their ordinary duties as such employees. It was not securely guarded or fenced, and the defendant was in this respect guilty of negligence which was *390the proximate cause of the injury to plaintiff. There was the finding upon contributory negligence of the plaintiff hereinafter referred to, and the damages were fixed at $5,000.

Errors are assigned in denying the defendant’s motion for a nonsuit, and later its motion to direct a verdict, .and later its motion to order judgment for defendant or grant a new ■trial. These points may be considered together so far as they are based upon alleged inadequacy of proof. Error is assigned in framing the special verdict, in the admission of evidence of a custom in sawmills to guard like gearings, and it is claimed that the damages awarded are excessive. We take up these points in order.

There was evidence tending to show that extending to the west from near the back or west end of a saw for about seventy feet is a series of short parallel rollers, twenty-one in number and three and one-half feet apart from center to center, and each about that length, so that the whole, with the frame supporting them and with the top of that frame decked or covered beween the rollers, formed a sort of long, low table about three feet seven inches wide, seventy feet long, and twenty-nine inches high. Rotary motion was communicated to each roller from a horizontal shaft running along the south side of said table near the south end of the rollers at right angles to the rollers and at a height of twenty inches from the mill floor, and connected with each roller by a bevel gearing. This shaft is driven by a perpendicular shaft coming up through and extending eighteen inches above the mill floor at right angles to the horizontal shaft and engaging with the'latter by means of a bevel gearing, which latter is the gearing upon which plaintiff was hurt. This upright driving shaft comes up through the mill floor and engages with the horizontal shaft at some distance west of the saws and at a point in said roller table just east of where a number of floor chains, forming a carrier for edgings and waste material and moving upon drums north-*391wardly, cross under said roller table in a direction at right angles to the long extension of said roller table. In the operation of the mill these floor chains sometimes clog with refuse, and the employees were required to remove this accumulated refuse. In doing this it was customary to stand on the roller table and use a pick, but it was also feasible to stand on the mill floor near the angle formed by the roller table extending east and west and the floor chains extending north and south and crossing under the roller table close by where the gearing in question stood.

Immediately before his injury the plaintiff was ordered to this position on the floor for the purpose of removing the refuse clogged in the east side of the floor chains. The gearing in question was covered by a plank twelve inches wide and two inches in thickness lying flat three or four inches over the gearing, extending one and one-half inches further south than the southmost part of the gearing, and the gearing was inadequately covered on the south side at the time of the injury. This uncovered side of the gearing was the side nearest to any person who might be standing on the floor in the angle formed by the roller table and the floor chains, and it was not unusual for the floor chains to become clogged,, and employees were expected in that case to remove the accumulated material. Erom the foregoing the jury might well find that the gearing in question was so located as to be dangerous to employees in the discharge of their duties.

It is next contended that the evidence establishes without dispute that the gearing in question was originally covered on its south side, but that at the time of the injury the board on the south side had become broken or split off, leaving it partially uncovered; that there is no proof that this existed a sufficient length of time before the injury to plaintiff to charge the defendant with negligence. The statute (see. 1636;] Stats. 1898) provides that gearings so situated *392“shall be securely guarded or fenced,” and it is quite possible this statute casts the duty upon the employer to keep such gearings securely guarded or fenced. If such is the law, the evidence in this case leaves no room for doubt that at the time of the accident the gearing in question was not securely guarded or fenced. But we find it unnecessary to determine this in the instant case because it is clear there is a conflict of evidence, which was resolved by the jury against the defendant, as follows: Several witnesses testified that at the time of the injury to plaintiff and for some time previous there was no board or guard on the south of this gearing. One witness testifies that about a week or a week and a half prior to the accident he had put water and oil on this gearing and it was not then covered, and several witnesses testified that the board on the south side of this roller table, which should have served as a guard or fence to this gearing, did not reach to the west as far as the gearing, but terminated six or eight inches eastwardly of the gearing. On the other hand, the witness for the defendant testified that this board extended to the west of the gearing six or eight inches, and would have covered the gearing on the south but for the fact that a piece was split off the board. ETo one offered to prove when this piece was split off. But the board was not a movable appliance, and if it was fastened so that the board failed to reach or cover this gearing it might have been so fastened by those who exercised the right and duty to place the board there. The position of this board was a fact to be ascertained by the jury, and the inference from the fact that it was not shown to have been broken off at the end and that it was fastened up in such position that it did not extend to the gears in question was an inference to be drawn by the jury. These were items of evidence from which the jury could infer, as against the evidence on the part of the defendant, that the gearing in question had never been covered on the south since that board was placed there either in the original *393construction or in some subsequent repair of tbe mill. Tbis makes it unnecessary to determine what would bave been tbe result bad it been shown by uncontroverted evidence that tbe gearing bad been covered and continued to be covered until a short time before plaintiff’s injury, when it was accidentally or intentionally and without tbe knowledge of the master uncovered, or what would bave been tbe result in the different case of a plaintiff, in an action for personal injuries •sustained by coming in contact with a gearing or appliance required by tbis statute to be fenced or guarded, not offering any evidence to show for what length of time tbe appliance bad remained unienced or unguarded.

Tbe question of plaintiff’s contributory negligence was for tbe jury. He was called upon to remove tbis debris which clogged tbe floor chains at or about thirty minutes past 5 o’clock in tbe afternoon of Uovember 8th. Tbe lights were at some distance from tbis gearing and tbe gearing was in tbe shadow of tbe slightly overhanging top plank. Tbe place at which be stationed himself in order to do tbis work appears to bave been such as to facilitate tbe doing of tbe work under tbe particular, conditions of clogging then present. He would naturally be obliged to stoop down. There was a projecting set-screw in tbe collar of tbe perpendicular driving shaft just below tbe crown gear, and in doing bis work be might naturally and accidentally, but while in tbe exercise of due care, bave brought bis trousers in contact with either tbe set-screw or tbe gearing, or both. Tbis whole question was for tbe jury.

Tbe seventh question of tbe special verdict is as follows: “Did tbe plaintiff in any manner fail to use ordinary car© which proximately caused or contributed to produce tbe accident?” Tbe jury answered tbis question “Uo.” Taking tbe literal meaning of tbis question and answer, we bave a finding that tbe plaintiff did use ordinary care of that kind which caused or contributed to cause tbe accident. Tbis is *394nonsense. It is remarkable that a question in this form should escape the scrutiny of court and counsel and be submitted to the jury. But the court instructed the jury with reference to this question that if the plaintiff failed in any respect, however slight, to exercise ordinary care, and such failure on his part proximately caused or contributed, to produce the accident, in such case they should answer this question “Tes.” But if the plaintiff did not in any respect fail to use ordinary care and thereby cause or contribute to produce the accident, in such case this question should be answered “No.” This charge informed the jury that of the sentence forming the question, that clause beginning with the word “'which” should be understood as adverbial rather than adjective, or, in other words, to modify the.word “fail” rather than the word “care,” and that it should be understood as if it read as follows: “Did the plaintiff in any manner fail to use ordinary care, which failure proximately caused or contributed to produce the accident?” Considering the question and the instructions explaining it together, it seems reasonably certain that the jury understood it in this way, particularly in a case where the question and answer would be otherwise meaningless.

A witness called for the plaintiff testified that he had worked in five or six different sawmills, and was asked whether the gearing and shafting situated similar to the gearing and shafting in question were in those other mills covered. This was objected to as incompetent, and it seems to us that the objection was well taken. But, the statute having imposed upon the defendant the duty of covering the gearing in question, it was in no wise prejudiced by an attempt, however successful or however feeble or insufficient, to prove a corresponding common-law duty.

It is contended that the damages awarded are excessive, and we would have been better satisfied with the result had the circuit judge reduced this verdict by $1,000 or $2,000. *395But the wound was unusually severe and painful and there is some degree of permanent impairment. The wound is described as fourteen to sixteen inches long and five or six inches wide, extending from slightly above the knee toward the hip, lacerating the skin and tearing out portions of the muscle of the thigh. Part of this muscle had to be cut away, skin grafting took place, the 'wound has broken out again several times since the plaintiff left the hospital, it has left a scar nine or ten inches long and five or six inches wide, has taken away permanently part of the muscles of the thigh, and permanently impaired the use of his leg to a great degree. We find no reversible error in the record.

*By the Gourt.*— The judgment of the circuit court is affirmed.