#### Stork, Respondent, vs. Charles Stolper Cooperage Company, Appellant.

*February 3*

February *21, 1906.*

*Master and servant: Personal injuries: Evidence: Special verdict: Material questions: Negligence: Simple tools; Monkey wrench: Uncovered gearing: Instructions to jury: Proximate cause.*

1. In an action for personal injuries received by a servant from machinery, while on many questions there was substantial conflict, and what might he deemed a preponderance of the evidence against the verdict, it is *held*that there was credible evidence from which the jury might have reached their conclusions expressed in the special verdict.

■2. Where the jury in the special verdict have found that the defendant had actual knowledge of the defects which were claimed to have caused personal injuries to a servant, a question of said verdict: “Ought the defendant by the exercise of ordinary care to have known that the 'wrench was defective before plaintiff was injured,” is immaterial.

:3. Generally speaking, in case of simple tools no liability rests on the master for the ordinary perils resulting from their use, nor for those latent and usual defects or weaknesses which, by reason of the common, usual character of the appliance, are presumed to he known to all men alike, hut such exemption is based on the condition that the defect and peril are such that no superiority of knowledge of the master over the employee exists or can he presumed.

4. As to simple tools and appliances the exemption of the master from the duty to inspect to ascertain the development of defects and disrepair in the course of their use is based upon the assumption that such conditions are as much within the observation, if not more so, of the employee as of the master.

.5. Such exemptions from liability are not in denial of the general underlying principle of the law of negligence that one who knowingly exposes another to likelihood of injury is liable therefor, in the absence of consent by such other or of contributory negligence.

'6. In an action for personal injuries to a servant it appeared, among other things, that plaintiff .was injured while using a monkey wrench; that the screw intended to move and hold the jaws of this wrench was so defective that it would not accomplish the latter purpose under pressure; that such fact was brought to *319the actual notice of defendant’s representative a week or ten days before the accident; that the defect was not such as to be obvious to one. attempting to use the wrench, and that the wrench was expected to be used, as it was, in tightening or loosening nuts upon running machinery with exposed gears. *Held,*that the jury might have considered it within the realm of ordinary expectation that, when so used, the jaws of the wrench would be likely to,part, allow the wrench to slip, and the hand of plaintiff come in contact with the gearing to his hurt, and hence it cannot be said, as a matter of law, that there was no evidence to support liability for the injury so occurring.

*1,*In an action for personal injuries to a servant it appeared, among other things, that the injury resulted from contact with uncovered gearing, the presence of which was not only unlawful under sec. 1636;, Stats. 1898, and therefore negligent, but might also have been considered negligence on the part of the defendant independently of such statute. The court failed to submit to the jury as part of the special verdict a question as to whether the defects complained of and absence of warning to the plaintiff were the proximate cause, but did submit a question as to whether there was any want of ordinary care on the part of defendant which proximately caused plaintiff’s injury, which the jury answered “Yes.” There was no instruction that they could so answer only in case they found the defect to have been the natural and probable cause of the injury, but, on the contrary, they were instructed to answer affirmatively in case they so found, and, by separate and independent paragraph, also to answer “Yes” if they found there was any negligence on defendant’s part which was the natural and probable cause. It was conceded that plaintiff had full knowledge of the exposure of the gearing. *Held,*that the jury might have believed that the exposed gearing was an act of negligence on the part of the defendant, and that it was the proximate cause within the definition given by the court.

8. In such case the actual causal relation between the defect in the wrench and the injury cannot be said to exist as matter of law, although it might be found as a fact that one supplying such a defective wrench should, as an ordinarily prudent and intelligent man, anticipate the likelihood that it would be used in such way as to cause injury.

Appeal from a judgment of tbe circuit court for- Milwaukee county: Laweeitce W. Halsey, Circuit Judge.

*Reversed,.*

*320On January 25, 1900, the plaintiff was employed in defendant’s cooperage factory upon a certain machine. He was then nineteen years of age, considerably experienced with machinery, and had worked about six months in defendant’s factory, and on numerous occasions with the machine in question. A transverse shaft ran across the machine, having at one end an exposed gearing, and, about four inches from the gearing, passed through a box or journal, the top of which was fastened down with bolts each having a nut on top. It often became necessary, by reason of the heating of this box, to loosen such nuts, and plaintiff had done so a great many times, picking up for that purpose any one of several monkey wrenches which were about the shop, but none of which was specially supplied for that purpose. On the day in question this operation became necessary, and plaintiff went to a machine a few feet away and found a monkey wrench which, without looking at it to ascertain its condition, he fitted to the nut and pushed on the handle away from himself and toward the gearing. The wrench was claimed to be defective so that the jaws parted and it slipped off the bolt suddenly, and plaintiff’s hand went into the gearing and was seriously mangled. There was some evidence from another employee that he saw the wrench used by the plaintiff; that he was familiar with it and had discovered' a few minutes before that the thread of the screw which moved and held the jaws was so worn out that the jaws would part upon application of pressure ; that about a week before he had discovered the existence of that defect in a less degree, and had called to it the attention of the foreman whose business it was generally to look after and repair all machinery and appliances in the shop._ The jury, by special verdict, found: (1) That the wrench was defective. (2) That defendant’s foreman had been notified thereof before the day of the accident. (3) That defendant ought, by the exercise of ordinary care, to have known of the defect. (4) That the plaintiff neither knew, nor by *321tbe exercise of ordinary care ought to have known, thereof. (5) “Was there any want of ordinary care on the part of the defendant which was the proximate cause of the plaintiff’s injury?” *Answer.*“Yes.” (6) There was no want of ordinary care on the part of plaintiff which proximately contributed to the injury. And (7) damages. Defendant having previously moved for nonsuit and for direction of a verdict, after verdict moved to reverse the answers to questions 1, 2, 3, 4, 5, and 6, and for judgment in favor of the defendant; or, in the alternative, that the verdict be. set aside and a new trial granted, which motions Were overruled and judgment entered in favor of the plaintiff, from which the defendant appeals.

Eor the appellant there was a brief by *Vilas, Vilas & Freeman,*and oral argument by *F. P. Vilas.*

Eor the respondent there was a brief by *Fiebing & Killilea,.*attorneys, and *G. H. Van Alstine,,*of counsel, and oral argument by *Mr. H. J. Killilea>*and *Mr. Van Alstine.*

Dodge, J.

1. The first assignment of error involves, primarily, the assertion that there was no credible evidence upon which the jury might have reached their conclusions expressed in the special verdict. With- this we cannot agree. While on many of these questions -there was substantial conflict and, perhaps, what we might deem a preponderance of evidence to the contrary, there was at least some evidence in support of each of the answers, except perhaps the third, which, however, is immaterial in presence of the finding of defendant’s actual knowledge of the defect in the wrench.

2. It is strenuously urged that a monkey wrench falls within the category of common and simple tools, as to which,, it is asserted by the appellant, the master is not bound by the ordinary rule that he must supply his employee with suitable and safe appliances. It may be conceded that, generally speaking, a monkey wrench is in such category, and the rule *322of law is well established in this state and elsewhere that in case of snch simple tools no liability rests on the master for the ordinary perils resulting from their use., nor for those latent and usual defects or weaknesses which, by reason of the common, usual character of the appliance, are presumed to be known to all men alike. This exemption from liability is, we believe, in all cases based upon the condition that the defect and peril are such that no superiority of knowledge in the master over the employee exists or can be presumed. *Corcoran v. Milwaukee G. L. Co.*81 Wis. 191, 51 N. W. 328; *Borden v. Daisy R. M. Co.*98 Wis. 407, 74 N. W. 91; *Olson v. Doherty L. Co.*102 Wis. 264, 271, 78 N. W. 572; *Marsh v. Chickering,*101 N. T. 396, 5 N. E. 56; *Cahill v. Hilton,*106 N. Y. 512, 518, 13 N. E. 339; *Garnett v. Phoenix B. Co.*98 Fed. 192; *Louisville, E. & St. L. C. R. Co. v. Allen, 47*Ill. App. 465; *Georgia R. & B. Co. v. Nelms,*83 Ga. 70, 9 S. E. 1049. Another qualification of the master’s 'liability indulged in case. of such simple tools and appliances is exemption from a duty to inspect to ascertain the development of defects or disrepair in the course of their use, based also upon the assumption that such conditions are as much within the observation of the employees as of the master, if not more so. *Twombly v. Consolidated E. L. Co.*98 Me. 353, 57 Atl. 85; *Wachsmuth v. Shaw E. C. Co.*118 Mich. 275, 76 N. W. 497; *Cregan v. Marston,*126 N. Y. 568, 27 N. E. 952; *Relyea v. Tomahawk P. & P. Co.*110 Wis. 307, 85 N. W. 960. While these rules result practically in a relaxation of the mastei-’s duty and liability in the case of such simple tools, they are not at all in denial of the general underlying principle of the law of negligence that one who -knowingly exposes another to a likelihood of injury is liable therefor, in the absence of consent by such other or of contributory negligence. As stated above, the relaxation of the master’s duty and liability rests on the assumed equality of knowledge and ability to discover the defect complained of. It can have no application to a defect of which the master is *323actually cognizant, and which, as a reasonable man, he should appreciate is likely to result in injury to one using the implement as it is likely to be used, and which is' neither known to the employee nor of such a character as to be obvious to that ■observation which may be expected to accompany its use. In such case the general rule of negligence as above stated is fully effective, and the master who knowingly and negligently •exposes his employee to a peril unknown to the latter must respond for the damage which results. *Vant Hul v. Great Northern R. Co.*90 Minn. 329, 96 N. W. 789; *Johnson v. Mo. Pac. R. Co.*96 Mo. 340, 9 S. W. 790; *Chicago, K. & W. R. Co. v.*Blevins, 46 Kan. 370, 26 Pac. 687; *Twombly v. Consolidated E. L. Co., supra.*In the case before us there was at least some evidence that the screw intended to move and hold the jaws of this wrench was so defective that it would not accomplish the latter purpose under pressure; that such fact was brought to the actual notice of the defendant’s representative a week or ten days before; that it was not such as to be obvious to one attempting to use the wrench; that the wrench was expected to be used, as in this particular case, in tightening or loosening nuts upon running machinery with exposed gears, from all of which the jury might have considered it within the realm of ordinary expectation that, when so used, the jaws would be likely to part, allow the wrench to slip, and the hand of the operator to come in contact with moving parts of the machinery to his hurt. Hence we cannot say that as a matter of law there was no evidence to support liability for an injury so occurring.

3. The chief difficulty arises upon the appellant’s contention that there is no finding that the defect in the wrench was the proximate cau.se of the plaintiff’s injury. It should be remembered that the injury resulted directly from contact with an uncovered gearing, the presence of which was not only unlawful under sec. 1636y, Stats. 1898, and therefore negligent, but might also have been considered negligence on the part of *324tbe defendant independently of sncb statute. In tbis situation tbe court submitted to tbe jury no question as to wbetber tbe defects in tbe wrench and absence of warning to tbe plaintiff were tbe proximate cause, but wbetber there was “any want of ordinary care on tbe part of tbe defendant which proximately caused tbe plaintiff’s injury.” Tbis tbe jury answered “Yes.” There was no instruction that they could so answer only in case they found tbe defect in tbe wrench to have been tbe natural and probable cause of the injury, but, on tbe contrary, they were instructed to answer affirmatively in case they so found, and, by separate and independent paragraph, also to answer “Yes” if they found there was any negligence on defendant’s part which was tbe natural and probable cause. We think tbe conclusion irresistible that tbe jury might well have believed that tbe exposed gearing was an act of negligence on tbe part of defendant, and that- it was tbe proximate cause within tbe definition given by tbe court. If so, eon-cededly tbe defendant would not be liable, for tbe plaintiff bad full knowledge of tbe exposure of tbis gearing, and bad, doubtless, assumed any risk therefrom.

It is suggested that proximate causation of tbe injury by tbe defect in tbe wrench is so obvious that tbe court must declare it as matter of law. Tbe legal proximate relation between cause and result involves so much of inference from tbe known characteristics of human nature, in deciding what is or should be within tbe reasonable anticipation of tbe ordinarily prudent and intelligent person under all tbe circumstances, that very rarely can that relationship be declared, at least in tbe affirmative, as matter of law. Doubtless there may be sucb cases, as where a railroad train breaks through a known defective bridge, or a pedestrian on a sidewalk steps into an obviously dangerous bole, or a surgical operation is-negligently performed. *Allen v.*Voje, 114 Wis. 1, 17, 89 N. W. 924. In tbis case, however, while tbe actual causal relation is perhaps undisputed, we think it cannot be said as mat*325ter of law, although it might well be found as a fact, that one supplying such a defective wrench should, as an ordinarily prudent and intelligent man, anticipate the likelihood that it would be used in such a way as to cause injury. Jíe are persuaded that was the question for the jury and has not been passed upon by this verdict, which therefore does not support the judgment for the plaintiff.

*By ihe Gourb.*— Judgment reversed, and cause remanded for new trial.