#### Law, Respondent, vs. American Bedding Company, Appellant.

*September 13*

November *14, 1911.*

*Master and servant: Negligence: Injury to servant: Unguarded shafting: Dangerous location: Questions for jury: Contributory negligence: Special verdict: Pacts omitted: Presumptions.*

1. Wliere a shaft, upon which was a set-screw projecting about three fourths of an inch from an iron collar, was at such a distance from the floor of a factory and so near an upright timber that ordinarily employees could not come in contact with it except in oiling, repairing, or putting on belts, and the uncon-troverted evidence was that it was not the duty of any employee to come near the shaft while it was in motion, such shaft should have been held, as matter of law, not to have been so located as to be dangerous to employees in the discharge of their duties. *Wallcer v. Simmons Mfg. Co.*131 Wis. 542, distinguished.

[2. Whether there was contributory negligence on the part of an *employee*who, after being instructed to stop the machinery in order to put a belt upon a pulley on such shaft, attempted to put the belt on after the power had been thrown off but before the shaft had ceased to revolve, and was caught by the setscrew and injured — there being evidence that it was usual, not in this factory but generally, to put pulleys on in that way,— is not determined.]

3. Negligence of the defendant cannot be presumed under sec. 2858m, Stats. (Laws of 1907, ch. 346), in support of a judgment against him, where there is no evidence tending to show that he was negligent.

*225Appeal from a judgment of tbe circuit court for Douglas county: EbaNK A. Ross, Circuit Judge..

*Reversed.*

Eor tlie appellant there was a brief by Luse, *Powell & Luse,*and oral argument by *L. K. Luse.*

*Victor Liriley,*for the respondent,

contended, *inter alia,*that an omission to find formally that there was negligence or ■want of ordinary care is immaterial if all the material facts are found from which it can be -inferred. *Kelléher v. M. •& N'.'R. Co.*80 Wis. 584, 50 N. W. 942; *Patry v. C., St. P., M. & O. R. Go.*82 Wis. 408, 52 N. W. 312; *Trapp v. New Bird-sail Go.*109 Wis. 543, 85 N. W. 4J8. Besides, any such formal omission would be cured byThe statute, sec. 2858m.

The following opinion was filed October 3, 1911:

TimliN, J.

The jury by special verdict found that there was a set-screw upon a shaft so located as to be dangerous to employees in the discharge of their duties; and that the defendant failed to have the set-screw and shaft securely guarded or fenced. Such failure was the proximate cause of plaintiff’s injuries. The plaintiff was not guilty of any want of ordinary care which contributed proximately to produce his injuries, nor was he prior to the injury directed by defendant’s foreman not to put on the belt while the shaft was in motion. BEe sustained damages to the amount of $2,250.

A shaft in defendant’s factory, six feet two inches from the floor, carries several pulleys, and at one place rests in a journal box upon an iron bracket fastened to an upright timber. On one side of this journal box there is an iron collar fastened by a set-screw on the shaft to prevent lateral movement along the shaft. Fourteen inches further along the shaft there is a pulley of twenty-eight inches diameter which carries a three-inch belt driving a blower. The place for oiling that journal is on top of the journal box and very near the set-screw, but no oiling was done while the machinery was in motion. The head of the set-screw projected about three fourths of an inch *226outside the periphery of the collar. When the blower was not in motion the belt was pulled off this pulley on the side toward the set-screw and hung loosely on the shaft. This shaft is run by an electric motor, and the power can be readily turned off and the shaft stopped for the purpose of replacing the blower belt on the pulley when that is necessary. The belt is quite loose, and may be replaced either by pushing it over the outside of the pulley or hy putting it partly on and then turning the pulley by hand. The uncontroverted evidence is that it was not the duty or the practice of any employee to go near the shaft while it was in motion. Oiling and repairing were done when the power,was shut off and the shaft not in motion, and the belts were only put on when the shaft was still, and there was no necessity for putting the belts on while the shaft was in motion. A box stood under the shaft on the floor near the pulley, apparently for the employee engaged in putting on the belt to stand upon.

The plaintiff was an engine driver, or, as it is sometimes called, a stationary engineer, and stood on this box when injured. The testimony most favorable to him is his own, as follows:

> “Engineering was all I was hired for and all I done. I did not put on this belt while I worked there before. As to how I come to put on that belt, we hadn’t started up yet that morning. I guess may be 8 o’clock or may be along about that time, when I got ready to start I went into the other room and hunted Korte up. Korte was a kind of superintendent there. He is the man that was in charge. ITe hired me. I went into the main building to look for him to come and throw the belt on, and he says: ‘I am busy, you go in and tell the boy to shut the motor down until you put the belt on.’ And I obeyed the orders. I told the boy and the boy shut it down, and I waited until the shaft got to running pretty slow and I undertook to throw the belt on and my clothes got ketched. I should judge it was within five or six revolutions of stopping that I attempted to put the belt on. It stopped in five or six revolutions after I got ketched. I waited until I *227thought the shaft had slowed down enough so I could throw it. on. I got up there on the box to throw the belt on and was turning around to get hold of the belt; that set-screw there ketched my clothes and pulled this one (hand) clear around' the shaft, and I ketched it there with my hand and held it there until it pulled my clothes all off.”

It thus appears that, in the face of an instruction to stop this part of the machinery in order to put on the belt, the 'plaintiff, knowing it was being stopped and without waiting for it to come to a full stop, attempted to put on the belt while the shaft was in motion. In the frial of cases arising under sec. 1636y, Stats. (1898), it must often be a question of fact whether the shaft, gearing, etc., left unguarded and unfenced was so located as to be dangerous to employees in the discharge of their duties. Where there is contradictory evidence on this point or contradictory inferences may be drawn from undisputed evidence, this is a question for the jury. -But where the evidence is without dispute and no reasonable contradictory inferences may be drawn therefrom, it is a question for the court whether the machinery, etc., is so located. So long as no employee was required or permitted to. oil this bearing while the shaft was in motion, or to put the three-inch belt upon the pulley while the shaft was in motion, there could be no reasonable inference drawn from the evidence that the shaft bearing the set-screw was so located as. to be dangerous to employees in the discharge of their duties. The affirmative was on the plaintiff upon this point, and the uncontroverted evidence above referred to removed any inferences which might be derived from location with reference to the belt and place of oiling. The shaft was also at a distance from the floor as stated. ~

The distinction between this case and *Walker v. Simmons Mfg. Co.*131 Wis. 542, 111 N. W. 694, is that in the last mentioned case there was affirmative evidence that the duties of the employee required him to pile wire mattresses under- and quite up to the shaft there in question, while in the in*228stant case tbe shaft is at such a distance from the floor and so near to the upright timber that ordinarily employees could not come in contact with it except in oiling, repairing, or putting on belts, and the uncontroverted evidence shows that these things were done when the shaft was not in motion.

Another point is made that the respondent’s evidence above quoted shows him guilty of contributory negligence. In rebuttal of this the respondent offered evidence that it was usual, not in this mill but generally, to put on such belts after the power had been thrown off but before the shaft had ceased revolving. It must be confessed that upon this record there is a pretty strong case of contributory negligence made by the respondent, but as this court is not unanimous on that point and the case is disposed of on the other exception, we think discussion and decision on the last point may be omitted. We are therefore compelled to rule that the court erred in denying the motion of defendant to change the answer to the first question in the special verdict finding the shaft so located as to be dangerous to employees from Yes to No. No presumptions in favor of the judgment under sec. *2858m,*Stats. (Laws of 1907, ch.'346), can be upheld, because upon a careful reading of the evidence we find nothing tending to show that the defendant was negligent.

*By the Goiurt.*— Judgment reversed, and cause remanded with directions to change the answer as indicated in this opinion and render judgment for the appellant.

A motion for a rehearing was denied November 14, 1911.