Gill v. Homrighausen

Cassoday, J. Counsel for the defendant contends that in order to sustain this judgment the evidence in the record must establish affirmatively (1) that the deceased was free from contributory negligence; (2) that the danger was not apparent to an unskilled laborer of ordinary intelligence; and (3) that the danger was, or ought to have been, apparent to the defendant. These things will now be considered. It is claimed that it was incumbent upon the plaintiff to prove that the injury was caused wholly by the defendant’s negligence; in other words, that he was required to prove that the intestate was free from all contributory negligence. It is the settled law of this state that the burden of proving contributory negligence is ordinarily upon the defendant. It is purely a matter of defense, except when the testimony on the part of the plaintiff discloses such negligence. Hoye v. C. & N. W. R. Co. 67 Wis. 15. No such defense was alleged in the answer, nor conclusively proved by the defendant. It is claimed that there is no evidence in the record to sustain the finding of the jury to the effect that the danger was apparent to a skillful and experienced mason at the time and immediately before the fragment of the arch fell. The accident happened on Monday. There is evidence tending to prove that the arch had been torn down, as far [637] as it was at the time of the accident, the Friday before, when the work upon it was stopped; that it had been so taken down by setting screws under the keystone, and raising the same, and driving in iron wedges to tear down the pieces; that the portion so remaining hung over about a foot, some seven or eight feet above the ground; that it was so left on Friday, without any braces or supports under the wall or arch; that the defendant saw its condition on that day; that it was so left uncovered, and with nothing to prevent the rain getting between the main wall and that portion of the arch; that there was a thunder-storm on the intervening Sunday, and it rained most all of that day, and also rained on Monday; that it was situated right on Third street, where big heavy teams were going over the pavement all the time; and that the defendant was standing close by at the time the accident happened. ITe testified that it was apparently safe. Others, skilled in the business, testified that it was apparently dangerous. The testimony is voluminous. It is only necessary to say that, after carefully considering all the evidence, we are forced to the conclusion that it is such as to warrant the finding mentioned. ¥e are also constrained to hold that the finding to the effect that the danger was not necessarily apparent to a common laborer not skilled in mason-work is sustained by evidence. No exception is taken to the charge, and it is not printed. No complaint is made to any ruling upon the trial. The only error assigned is the refusal to set aside the verdict as not being sustained by the evidence. The defendant seems to have had a fair trial throughout; and, as already indicated, there is evidence sufficient to sustain the verdict. By the Court.—The judgment of the circuit court, is affirmed.