Revolinski v. Adams Coal Co.

Winslow, J. The verdict in this case, though unnecessarily long, and involved, tells a very plain story of injury resulting from actionable negligence. Examination of the evidence shows that all the findings are sufficiently supported by the evidence. Indeed, it is rare to find a case of this nature where the fact of the employer’s negligence is as satisfactorily proven as in the present case. There is ample evidence to show that the endless steel cable which furnished the motive power to the cars had been for some weeks before the accident in a defective condition; that it had been patched in a number of places; and that the ends of the strands, each composed of a number of smaller wires, frequently got loose and frayed out so that they would catch in the grips, causing the very difficulty which seems to have occurred here. It is said that the evidence of these former occurrences 5f a similar nature within two or three months prior to the accident was incompetent, because it is shown that after each such occurrence the rope was repaired, and that issues are raised not formed by the pleadings. It is a little difficult to see upon what theory these claims of error are based. The complaint charges that the rope was worn out, and many of the wires broken and projecting, and that this was the cause of the failure of the grip to work, and we do not see how the fact could be more [329] ■satisfactorily shown than by just such testimony as was introduced. It seems to be the best evidence of the fact claimed, .•and we can entertain no doubt of its admissibility. Certain evidence was admitted, tending to show that the .arc lights with which the shed was lighted were sometimes obscured by coal dust from the operation of the hoppers, and would occasionally die down, and then flare up again. This is said to have been inadmissible, because there was no claim that the place was defectively lighted. It appears, however, that it was received only for the purpose of showing the conditions and surroundings at the time, and as tending to show whether the plaintiff was negligent in not discovering the condition of the cable, and for that purpose it was undoubtedly competent. Kucera v. Merrill L. Co. 91 Wis. 637, 65 N. W. 374. The -general claim is made that, as matter of law, the evidence shows that the plaintiff was guilty of contributory negligence, and assumed the risk. This claim is largely based upon evidence which is directly contradicted either by the plaintiff or other witnesses, or both. In order to sustain such a claim, the evidence on which it is based must be undisputed, or so clearly proven that no reasonable inference can be drawn to the contrary, and this is far from being the ease Rere. The claim that there was no proof of negligence on the "part of the defendant is equally untenable, and for substantially the same reasons. It is also claimed that the damages are excessive. Upon the whole case, we cannot say that we should be justified in holding the damages excessive. The injury was very serious. The plaintiff’s skull was fractured, resulting in injuries to the eyes and brain, and there is expert evidence that the injuries are permanent in their nature. By the Court. — Judgment affirmed.