Baumann v. C. Reiss Coal Co.

Marshall, J. The jury found that the defendant, through its proper representative, knew before the accident that plaintiff’s working place was unsafe. Appellant’s counsel contend that there is no warrant in the evidence for such finding. It seems to us otherwise. There was considerable evidence tending to show that there was a weakened condition of the trestle, causing it to give way when the rolling body of coal struck the post, in that such post had.been so destroyed by fire at the top that the cap no longer held it firmly in place;, and that the foreman, Roth, made such an examination of the structure before the accident that he must have seen such damaged condition. Fie testified, substantially, that he examined the post where it parted from the cap. The jury went upon the theory that since he did so he must have seen all that was obvious, and that the defect referred to was of that character. [335] Complaint is made because the court in framing the special verdict included a number of questions covering undisputed matters and directed the proper answers, and in other ways indicated what answers were necessary to certain questions to enable plaintiff to recover. It has not yet been held error for a trial court to include in a special verdict undisputed matters, and direct answers to be made, or not to frame the verdict so as to disguise the effect of particular questions upon the final result. Doutbless the court may so frame a special verdict as to cover all the facts vital to the cause of action -and defense, if it sees fit, whether controverted on the evidence or not. If the result is to inform the jury how particular questions must be answered to enable a plaintiff to recover, that is the result of the law, not the abuse of it. True, this court has often advised that the manner of framing the verdict, best calculated to carry out the spirit of the statute, is 'to include in it only such questions as will, when answered, in view of the undisputed matters, enable the court to apply the law to the case. That has been iterated and reiterated so many times that we cannot hope to add to the importance of it by repeating it again. This case probably might have been submitted to the jury with five or six questions instead of nineteen, yet we cannot see that any reversible error was committed. The verdict, on the whole, follows the line suggested by this court much more closely than many that often come up for review. It is said that the verdict does not support the judgment, because it does not pass upon the question of whether Roth was a fellow-servant. If the court had added to the verdict a question on that, it would only have increased by one the at least useless interrogatories respecting undisputed matters. The evidence is all one way that Roth had full charge of the work upon the dock, that defendant left to him the duty of proving a safe working place for the men, and that he was not [personally engaged with them in removing the coal. .That [336] made Mm in every sense a vice-principal in respect to tile-safety of the trestle, and all other matters affecting the character of the working place in which he placed respondent and. his associates. The most important contention advanced by appellant’s-counsel, as said after presenting the matters to which we have referred, is that no actionable negligence was shown by the evidence. That, however, seems to have been decided in favor of respondent by the conclusions that appellant, by its proper-representative, knew that respondent’s working place was unsafe before the accident, since there is no claim that respondent knew that fact or was chargeable with knowledge thereof under the circumstances, and the jury found that the condition of the trestle was the proximate cause of the accident. In the discussion of this contention appellant’s counsel again: introduce the claim that Roth was a fellow-servant, and that-his negligence was not imputable to appellant. On that Wiskie v. Montello G. Co. 111 Wis. 443, 87 N. W. 461, and: Schultz v. C., M. & St. P. R. Co. 116 Wis. 31, 92 N. W. 377, are referred to. We are unable to see that either case is in point. It has often been held that whether one employee is the-fellow-servant of another does not depend upon the grade, but does upon the character of the service the two are engaged in Dwyer v. Am. Exp. Co. 82 Wis. 307, 52 N. W. 304; Hartford v. N. P. R. Co. 91 Wis. 374, 64 N. W. 1033; Adams v. Snow, 106 Wis. 152, 81 N. W. 983. When a foreman is engaged with other employees in personally doing any particular act, as that of blasting, the situation in Wiskie v. Montello G. Co., all are fellow-servants. This is not a case where a-crew, consisting of a foreman and those under his charge, were- at work to accomplish a common object, as in the case-relied upon by counsel, but one where a crew of men were set at work by the master, in the person of his foreman, in a dangerous place. Roth, as before indicated, took no part in moving the coal, but represented the master respecting the working place of the men who performed that service. The337 distinction between where a foreman is a fellow-servant and where he stands in the place of the master is too familiar, it seems, to warrant discussing it at length. The case cited by appellant’s counsel is a good example of the former, while McMahon v. Ida M. Co. 95 Wis. 308, 70 N. W. 478, is a good example of the latter. Klochinski v. Shores L. Co. 93 Wis. 417, 67 N. W. 934, is an example of how a foreman may act in the capacity of a vice-principal in placing another nnder him at work, and become a mere fellow-servant of such other in respect to such work by engaging with him in the performance thereof. In this case Roth stood for the principal in putting the men to work. The duty as regards the safety of the working place was personal with the master. Roth’s neglect in regard thereto was therefore appellant’s neglect. On the branch of the case above discussed it is argued that other causes than a defect in the trestle may, by the evidence, have been the cause of the accident as likely as that. We cannot sanction that such appears to have been the situation as a matter of law. True, the immediate cause of the fall of the trestle was the rolling of a large body of coal against the post, but it fairly appears that such an occurrence was one to be reasonably expected under the circumstances, and that it would not have injured the trestle had the post been fastened firmly to the cap, and the jury in effect so found. In that state of the ease the jury were warranted in finding that the negligence of the foreman in not acquainting the men with the fact that the post was not so fastened, or otherwise remedying the danger, was the proximate cause of the accident. Further complaint is made because the court directed the jury, in case they found that the weakened condition of the trestle was the proximate cause of the accident, not to answer the question, as regards whether the act which started the body of coal down the sloping side of the coal pile was such' proximate cause. The conclusive answer to that is that an [338] affirmative answer to the question as to whether the defective condition of the trestle was the proximate cause of the accident, in connection with the instructions in respect thereto, negatives any other circumstance being such cause, as a detailed statement of the situation will show. If it be true, as claimed, that 'the instructions as to the unanswered question were not strictly correct, we are unable to see how appellant was prejudiced. This was the situation: No complaint was made of the instructions respecting the question which was answered. Such instructions gave the jury to understand that an affirmative answer required them to first find that the plaintiff’s working place, to the knowledge of appellant, was unsafe for a sufficient length of time before the accident to have enabled it to protect him therefrom by the exercise of ordinary care; that the fall of the trestle was the natural and probable consequence of such unsafe condition; that the probability of the fall of the trestle, with the consequent injury to some one of its employees, in the light of attending circumstances, was an event which, in the exercise of ordinary care by one circumstanced as appellant was, was reasonably to be apprehended. It is easily seen that when the jury found all those essentials of responsible causation, the whole subject in that regard was. covered, leaving no need to answer any interrogatory as to whether, some act of a fellow-servant, or some other circumstance, was the producing cause of the injury. All of such other circumstances that might have had a bearing, probably or possibly, in view of the evidence, upon the cause of the injury, were negatived by the affirmative finding charging to appellant’s negligence, in effect, the sole responsibility therefor. Complaint is made of the size of the verdict. That is based on the theory that there is no evidence warranting a reasonable belief that respondent suffered any considerable mental impairment as a result of the accident. There was very fair opinion evidence on that subject, and evidence of circum [339] stances indicating that respondent was rather weak-minded before the injury; that his condition in that regard was worse, to a considerable degree thereafter, and that such condition had been noticeably progressive in character since the accident. The evidence was not strong, to be sure, but it was undisputed, that respondent did receive quite serious injuries in the region of his neck, back and head, — -injuries which were calculated to produce mental impairment. That, with the opinion evidence that such impairment was produced, and the evidence in respect to respondent’s actions, indicating the same to some degree, even to the mind of a nonexpert, prevents us from holding as a matter of law that the jury were not warranted in assessing damages upon the theory that respondent’s mind was injured by the negligence complained of. What we have said covers all the questions presented deemed worthy of special mention. The case on its facts is very much like Nix v. C. Reiss Coal Co. 114 Wis. 493, 90 N. W. 437, which grew out of the same accident. The evidence here seems to be stronger than in the previous case. It is particularly stronger in respect to the situation of the post which was struck by the rolling lump of coal, after the accident. Substantially every question now presented was presented before and was decided then against appellant. It seems that this case might well have been, under the circumstances, decided by referring to the previous adjudication, with the statement that no good reason was shown by the new record for making any different decision than before, though we have seen fit to briefly discuss the matters presented, somewhat out of regard for the belief of the learned counsel who presented the case for consideration, that the evidence in the present record differs sufficiently from the evidence produced on the former trial to warrant a careful reconsideration of the points involved. By the Court. — The judgment is affirmed.