Strahlendorf v. Rosenthal

LyoN, J. Several exceptions were taken during the trial, on behalf of the defendant, to the rulings of the court upon objections to testimony and to the charge given to the jury,, but none of them were insisted upon by the learned counsel for the defendant in his argument in this court, as grounds for reversing the judgment of the circuit court. It becomes unnecessary, therefore, to consider such exceptions. It is claimed that such judgment is erroneous and should be reversed for the following alleged reasons: 1. Because the complaint does not state the cause of action to which the testimony introduced by the plaintiff is directed, and upon which he relies, but sets up a different cause of action. 2. Because there was no testimony tending to prove that the plaintiff’s injuries were caused by the negligence of the defendant. 3. Because the evidence shows that, by the exercise of reasonable care, the plaintiff could have discovered the danger and avoided it. If the first of these propositions is true, unless the variance be disregarded or the.complaint is amendable after judgment, or if either of the other propositions is true, the judgment of [678] tbe circuit court should be reversed, but if neither of them be true, then such judgment should be affirmed. We will consider these propositions in the order above stated. I. It is true the complaint does not state expressly that the defendant knew of the fissure in the earth, and that the alleged negligence consisted in failing to inform the plaintiff of the fact, but it does aver that the sides of the shaft were in a dangerous condition, that they were not properly secured, and that due precautions against accidents had not been used, by means whereof the plaintiff was injured, and that the defendant, knowing the danger, sent the plaintiff to'the bottom of the shaft without apprizing him of the peril he thereby incurred. Although these averments might have been made more definite, it would seem that the cause of action to which the testimony is directed, is substantially alleged in the complaint. But, however this may be, if there is any variance between the complaint and the proofs, it is very clear that the defendant has not been misled by it, and the court properly directed the fact to be found in accordance with the evidence. Taylor's Statutes, 1445, §§ 35 and 36. II. The rules of law in respect to the liability of the defendant, for the injuries received by the plaintiff, are elementary and may be stated in a few words. The plaintiff, when he contracted to work for the defendant in and about the sinking of the shaft, took upon himself the necessary and usual risks of that employment. But if there existed some extrinsic cause, known to the defendant and unknown to the plaintiff, which increased the hazards of such employment beyond its ordinary and usual hazards, the defendant was bound to inform the plaintiff of the fact which thus increased the perils of the work. If, therefore, the defendant knew that the shaft was in a dangerous condition and sent the plaintiff into it without informing him thereof, and if, by reason of such dangerous condition, the plaintiff, without knowledge thereof or fault on his part, was injured, the defendant is liable to respond in damages [679] therefor. These rules have their foundation in the plainest.principles of justice and sound reason. See Baxter v. Roberts, decided by the supreme court of California (Chicago Legal News, vol. 5, No. 4, p. 41), in addition to the cases and authorities cited on this subject in the brief of the counsel for the plaintiff. Such being the law of this case, we are next brought to inquire whether there is any testimony tending to prove, 1. that the defendant has violated any legal duty which he owed the plaintiff in respect to such employment; and 2. that, in consequence of such violation of duty, the plaintiff received the injuries of which he complains. The testimony certainly tends to show that the earth which injured the plaintiff, fell from the point where it is claimed the crack or fissure was situated, and there is enough in the testimony to authorize the jury to find, that, had the plaintiff known there was danger that the earth would cave in from that point, he could easily have avoided the injury. It being conceded that the defendant did not inform the plaintiff of the existence of the danger, the only question left to be determined seems to be whether the testimony tended to show that the defendant knew that it existed. The testimony which it is claimed tends to show that the defendant had previous knowledge that the side of the excavation below the curbing was in a dangerous condition, is as follows: The plaintiff testified that soon after he was injured, and when lying on a lounge in the defendant’s house, he heard the defendant exclaim, “O, my Gfod! I wish I had not sent you down. I have seen that it was cracked, and I knew that it was dangerous.” Carl Stenzal testified that soon after the accident be heard the defendant say, “Oh! that I had told it, I have seen the crack, but thought it would still hold.” This was also said in the room where the plaintiff was lying. Charles Lang testified that several days after the plaintiff was injured, the defendant told him that he was in the ground on the forenoon of the day of the accident and then saw a big crack which was loose, [680] ‘but that be thought it would hold until they could get the plank in. Also, that defendant said that pieces of dirt from the orach fellupon the plaintiff, hnochedhim■ down andbrohehis leg, etc. Richard Gunther testifies that on the day of the accident, in the city of Oshkosh, where the defendant went for a surgeon, the defendant told the witness that he had been in the shaft or well a short time before the accident and had noticed a crack in the wall, but thought that it would hold and nothing would happen until he got through. Although all of the above testimony consists of certain statements and admissions alleged to have been made by the defendant, and although such testimony should, as the learned circuit judge very properly charged the jury, be received with great caution, still it is testimony in the case, and there is no escape from the conclusion that it tends to prove that the defendant knew;, when it is claimed he sent the plaintiff into the shaft, that there was a dangerous fissure in the side thereof which was liable to result in the caving of the earth in the vicinity of it, to a greater or less extent, at any moment. We do not say that the testimony proves that the defendant had such knowledge, but only that there was sufficient testimony tending to prove the fact to make it the duty of the court to leave the question for the decision of the jury; and this was done. If the defendant knew of the danger, and failed to inform the plaintiff of it, this was negligence on his part. The testimony therefore tends to show that he was negligent in that behalf. It follows from the views above expressed, that the objection that there is no 'testimony tending to prove that the plaintiff’s injuries were caused by the negligence of the defendant, is not well taken. Such objection is in the nature of a demurrer to evidence, which fails if there is any testimony upon the issue proper to be considered by the jury. ' • III. The remaining objection taken by the counsel for the defendant is also untenable. The court cannot say from the evi [681] dence that it is conclusively proved that the plaintiff was guilty of contributory negligence. That also was a question for the jury, and was properly submitted to them by the court. After a careful consideration of the case, we are unable to perceive any error in the proceedings as regards the questions which we are asked to consider. We think that the pleadings and evidence are sufficient to support the verdict and judgment. It follows that the judgment of the circuit court should be affirmed. By the Court. — Judgment affirmed.