152
The Green Bag
interesting decision in an action for damages for personal injuries have been communicated to us by Christian Doerfler, Esq., of Milwaukee, of counsel for the plaintiff. The accident for which the plaintiff, a minor, sued his employer occurred in a tinware factory in Mil waukee. It was the task of the plaintiff to operate a press which stamped pieces of tin at the rate of about thirty-five per minute. The press was set in motion by the operator pressing his foot upon a treadle. The plaintiff having operated one day the machine for a number of hours without any hitch, a piece of tin placed in the machine for stamping suddenly became attached to the die, and when the plaintiff attempted to remove it with another piece which he held in his hand; he unhappily failed to take his foot from the treadle, and the punch descended, causing the injury complained of. The contention of the plaintiff's coun sel was, in substance, that the muscular movements of the operator of the press, occurring in a continuously repeated sequence, required no act of the will and became mechanical and automatic, that in consequence of this automatic action the foot of the operator would be likely to descend on the treadle whenever a piece of metal was fed into the machine, that this was a danger of which the operator could not be aware without warning from his employer, and that it was the duty of the employer to point out the existence of the danger. Counsel further insisted that the employer should explain to his workmen the function of this habit resulting in the past in in numerable accidents upon these ma chines, and that he should warn the operator that when a piece of metal became attached to the machine it would be necessary for him to take a step backward from the machine to
break up this automatic sequence, other wise the mutilation of a member of his body would result. This contention was upheld in all essential particulars by the Supreme Court of Wisconsin, Kaczmarek v. Gender Paeschke & Frey Co., August term, 1911, no. 156. The Court (Winslow, C.J.) took the ground that the circumstances disclosed a concealed danger of which it was the duty of the employer to give warning : — "We cannot say as matter of law that this psychological or physiological danger may not exist and be just as real a danger as a danger resting in some un expected movement of the machine itself; nor can we say in this case as matter of law either that there was no evidence to charge the defendant with knowledge of the danger, or that the plaintiff must be charged with knowledge thereof; hence the question was neces sarily one for the jury, and unless there were prejudicial errors in the admission of evidence or the submission of the case in the charge, the judgment must be affirmed." Our readers may see a fancied analogy between the principle of this case and that of workmen's compensation, mak ing the employer an insurer of the safety of his workmen regardless of his own fault. The Court, however, did not see the case in this light : — "It is true that an employer is not an insurer of the safety of his employees, but he owes them the duty of providing reasonably safe machinery, and using ordinary care at least to discover con cealed or latent dangers in its use, and especially does he owe this duty to minors. If, year after year, these acci dents have been going on with perfect machines, and no sufficient explanation, it seems to us entirely proper for that fact to be shown in order that the jury
