Lounsbury v. Davis

Siebecicee, J. Appellants contend that under the testimony there can .be no dispute that the defective construction in weighting down and fastening the guy anchor was an open and obvious defect, of which respondent’s intestate, as an experienced quarryman, must be presumed to have had knowledge, and that he therefore assumed the risk incident to the use of the derrick in conducting appellants’ business. We cannot accede to this view. It appears that the deceased took no part in moving and resetting the derrick and guy anchors on the Saturday preceding the accident, nor does it appear that hi® attention was directed to the manner in which the anchors had been weighted down and fastened at that time. It is undisputed that one of the proprietors took full charge and direction of this moving and resetting of the derrick. From these circumstances it follows that it was appellants5' duty to have the anchors so fastened as to make it reasonably safe for operating the derrick in the usual manner of conducting appellants’ quarry business. Deceased had the right to assume that they were so fastened and secured, in the absence of proof that he, in the exercise of reasonable care, ought to have observed it, or was charged with a duty as block foreman (to which reference will be made hereafter) to examine the apparatus. It appears that tire anchors were placed at a point about 125 feet from the derrick mast, and located outside of and beyond the field of operation on the lodges in the quarry, where the deceased and other employees were engaged in performing the usual work in conducting appellants’ business. It does not appear that the deceased and the other employees in their daily occupations would or could readily observe the manner in which the anchors had been fastened and weighted down. Since there is evidence tending to show that the accident to respondent’s intestate resulted from a negligent fastening of the anchor by appellants, that the deceased had nothing to do with the fastening, and that it was not within his [437] observation in the usual course of his employment, it cannot be said as a matter of law that he had assumed the unusual dangers arising out of a negligent fastening of the anchors. In view of the evidence the question was one for the jury, under proper instruction by the court, as a species of contributory negligence, under the fourth question of the special verdict. In the case of Hennesey v. C. & N. W. R. Co. 99 Wis. 109, 74 N. W. 554, this question was so fully considered and discussed that further elaboration is unnecessary at this time. It is urged that the court should have submitted the issue of assumption of risk in a separate question in the special verdict. Counsel places reliance for such contention upon the cases of Hennesey v. C. & N. W. R. Co., supra, and Dugal v. Chippewa Falls, 101 Wis. 533, 77 N. W. 878. The cases do not justify the contention. As stated in the Hennesey Case: “Had the jury been carefully instructed upon the question of assumption of risk, and plainly told that it was a species of contributory negligence, and that, if they found that deceased did assume the risk of .such unusual danger, then he was in law guilty of a want of ordinary care, . . . there would probably be no error in refusing to submit the specific question asked for, because the issue would thus have been covered.” No such instructions were given in that case and none were requested by defendant, but it was there held that in the absence of such instructions a written request in the form of a special question on the issue was proper and took the place of a request to instruct on the subject. No specific instructions nor question were asked for by appellants in the instant case upon this issue. It is further claimed that the court erred in refusing to give the following instruction as requested: “If it is as probable that the accident resulted from an unknown cause as from any cause charged, then the defendants cannot be said to have been guilty of negligence in respect to any cause charged.” [438] The proposition thus submitted may be correct as a statement of a rule of law, but it has no application to the facts and circumstances before us. From the evidence adduced upon the trial there are, but two theories to account for the derrick's falling. It was due to an overload which was being hoisted, or, if not to an overload, it must have been due to the fact that the anchor became detached and gave way at the point where it was weighted down. These two theories were properly covered by the verdict and the charge given. Error is assigned upon the court’s ruling in the admission and rejection of evidence. The witness Charles Strube was permitted over objection to answer the question: “Could you tell why this dead man pulled out, from your observation and experience — any observation you made of this very derrick in question ?” to which he answered: “Because there was not stone enough $ else it would not have pulled out.” It was proper for the witness to testify fully as to the manner in which the anchor was constructed, the quantity of stones that were piled thereon, to give a full description of the manner in which they were piled on and about the anchor, and of their displacement after the accident. But this is the limit to which the evidence could properly be permitted to go. This limitation was plainly transgressed in the foregoing inquiry, and the witness was called upon and permitted to give his opinion upon an ultimate issue in the case, which can only be resolved by the jury. As stated in the case of Maitland v. Gilbert P. Co. 97 Wis. 476, 72 N. W. 1124: “The rule is that experts are not to decide issues of fact; hence all questions calling for opinion evidence must be so framed as not to pass on the credibility of any other evidence in the case, else it will usurp the province of the jury and the court.” The admission of this evidence was error. Another exception urged to a ruling on evidence pertains to the exclusion of evidence offered by appellants on the subject [439] of the dirty of respondent’s intestate as block foreman. Tes-; timony was admittéd descriptive of his duties while in the charge and management of the quarry; but when evidence was offered for the purpose of showing his duty in respect to any defects or a dangerous condition of the apparatus outside of his immediate surroundings in the quarry, it was excluded. This ruling was clearly erroneous. Whether or not the deceased, as block foreman, was charged with the duty of looking after the security of the anchor, is a material and very important question in view of respondent’s claim that he was free from contributory negligence. Exception is taken to the court’s construction of-the complaint in holding that the cause of action stated is one in favor of the widow of the deceased under the statute, and not one in favor of his estate. The distinctions between the two causes of action were pointed out in Brown v. C. & N. W. R. Co. 102 Wis. 137, 77 N. W. 748. The complaint fully and explicitly states all the facts necessary to constitute the cause of action for damages in favor of the widow. The pleader at the close added the statement that by reason of the death of respondent’s intestate “his estate was damaged in the sum of five thousand dollars.” The court disregarded this allegation and treated it as surplusage. This ruling was proper. A rejection of this statement in its entirety leaves a statement of facts in the complaint which clearly constitutes a cause of action under secs. 4255, 4256, Stats. 1898, in favor of the surviving widow, as it was evidently intended by the pleader. By the -Court. — The judgment is reversed, and the cause is remanded for a new trial.