Faber v. C. Reiss Coal Co.

Siebeokee, J. Plaintiff was awarded judgment upon a verdict which found that defendant failed in furnishing plaintiff a reasonably safe place to work, and that such negligence on defendant’s part was the proximate cause of plaintiff’s injuries and consequent damages. The specific negligence found by the jury was that defendant was guilty of a want of ordinary care in failing to properly light the platform and in failing to erect a barrier or railing along the edge of the platform, from which plaintiff fell while he was engaged as an employee in conducting defendant’s business. The question is, Do these findings furnish a legal ground for a recovery by the plaintiff, in view of the undisputed facts and circumstances of the case ? The facts material to a determination of this question appear in the foregoing statement of facts. If plaintiff, as an intelligent and reasonably prudent man, ought to have observed the hazards of which he now complains, as incident to defendant’s method of conducting its business, then no liability exists in his favor. He was a man of experience and was familiar with the kind and nature of the work he was required to perform. He was so situated and employed when he commenced working on the platform that slight attention to his surroundings would have informed him of the absence of a railing on the edge of the platform and of the danger incident to this condition. The very situation was suggestive of the danger to which he was exposed in performing his services. He is not relieved from the consequences of these assumed perils, under the condition of the dim and uncertain lighting of the platform as provided by the defendant. If the platform was insufficiently lighted, this was a condition within his immediate observation before the accident happened, and continuing in the service he is presumed to have had full knowledge of the danger arising therefrom. The evidence shows that plaintiff had a general knowledge [560] of the way in which the platform was constructed and the uses to which it was put, before he went to wort upon it. It is also apparent that, while working on the platform from and after 5 o’clock in the afternoon of the day of the accident, he ought, as an intelligent and reasonably prudent man, to have observed that no railing or guard had been placed along the edge of the open side of the platform. He also had equal opportunity with defendant to fully inform himself before the accident occurred whether the platform was properly lighted for conducting defendant’s business in the evening. It is well-settled law that when a servant has knowledge of .obvious dangers and perils incident to his employment, or if he, as an intelligent and reasonably prudent man, ought to have observed and to have known them under the circumstances of his service, then he assumes the hazards incident to the business as it is being conducted. The fact that defendant may have conducted its business negligently in the respects mentioned in no way renders this rule inapplicable to the case, for it had the legal right to conduct its business in its own way, though a different and more prudent method might have prevented the dangers complained of. This is for the reason that if a servant agrees to undertake employment in a business being conducted in a certain way, he thereby assumes all the obvious dangers and hazards. In support of this rule we cite the following cases: Powell v. Ashland I. & S. Co. 98 Wis. 35, 73 N. W. 573; Larsson v. McClure, 95 Wis. 533, 70 N. W. 662; Naylor v. C. & N. W. R. Co. 53 Wis. 661, 11 N. W. 24. In view of the facts established by the evidence, the finding of the jury that defendant was guilty of a want of ordinary care in failing to provide a railing on the platform and sufficient lights to safely conduct the business, furnishes no ground of actionable negligence, for, if the platform was unsafe in these respects, any dangers incident thereto were assumed by the plaintiff when he continued in the service. Abbot v. McCadden 81 Wis. [561] 563, 51 N. W. 1079; Thompson v. E. P. Allis Co. 89 Wis. 523, 62 N. W. 527; Moulton v. Gage, 138 Mass. 390; Taylor v. Carew Mfg. Co. 140 Mass. 150, 3 N. E. 21; Hughes v. W. & St. P. R. Co. 27 Minn. 137, 6 N. W. 553; Wannamaker v. Burke, 111 Pa. St. 423, 2 Atl. 500; Foley v. Jersey City E. L. Co. 54 N. J. Law, 411, 24 Atl. 487. Exception was taken to several hypothetical questions asked physicians testifying as to plaintiff’s injuries. The questions were put to ascertain whether or not tho injuries to the skull were “likely” to result in recurrent troubles, or were “apt” to affect injuriously the other eye. The questions were framed to elicit the probabilities of future suffering as consequences of existing conditions. In Hallum v. Omro, 122 Wis. 337, 99 N. W. 1051, the bearing of such testimony was fully considered and the practice of admitting it approved. Any further discussion at this time is therefore needless. Error is assigned upon a question propounded to one of the jurors, and upon the remarks of the court and of' plaintiff’s counsel respecting the same. At the examination of the juror Plank, on the voir dire, he was asked by plaintiff’s counsel whether he was a stockholder in the Travelers Insurance Company. Defendant’s counsel objected to the question as incompetent, immaterial, and improper, whereupon the court remarked that there was nothing to show that the insurance' company was interested in the defense, but, if it was interested, the inquiry was proper. To this statement of the court defendant excepted, and it was suggested to the court that such statements by the court or counsel in the presence of jurors had been held highly improper and prejudicial. This was followed by further colloquy between the court and the counsel for both parties, wherein plaintiff’s counsel suggested that defendants were insured by this insurance company. Upon objection to this remark the court ruled: “That objection is well taken. Suppose that they were; then what ?” [562] To this inquiry of the court plaintiff’s counsel responded by stating that the insurance company had undertaken to pay any judgment that might he recovered and he therefore deemed it proper to press the inquiry. Further objection was made to this statement, which the court, in the first place, overruled, and then immediately withdrew the ruling, saying: “I think we are wasting time. I think the safest way is to sustain the objection.” It is urged that this proceeding was highly prejudicial, and that any verdict, therefore, rendered in plaintiff’s favor should not be permitted to stand. The objection reaches two aspects of the proceeding: First. Was it proper to inquire of the juror' whether or not he was a stockholder in the insurance company ? The record shows that plaintiff’s counsel suggested to the court that they had been informed that the insurance company had a pecuniary interest in the outcome of the action. Under such circumstances it was material and proper to inquire of the juror whether or not he was pe-cuniarily interested in the insurance company. If he was so interested, that would disqualify him, and full opportunity should be given a party to ascertain that fact from a juror in the case. This rule is so clearly sanctioned that citation of authorities is well-nigh unnecessary. 17 Am. & Eng. Ency. of Law (2d ed.) 1131; 1 Thompson, Trials, §§ 101, 102; McLaughlin v. Louisville E. L. Co. 100 Ky. 173, 37 S. W. 851. But complaint is made that the court and plaintiff’s counsel trespassed beyond the proper limits of such an inquiry in making the statements above mentioned within the jurors’ hearing, because such remarks are in their nature so prejudicial that all subsequent efforts to withdraw them from being considered by the jury were of necessity fruitless. In support of this contention we are cited to the case of Lipschutz v. Ross, 84 N. Y. Supp. 632. The exception urged in this case pertained to the remarks of counsel made before the jury in connection with an inquiry as to [563] their pecuniary interest in an insurance company under cir-■cumstanees like those before us. The court held that such remarks constituted reversible error. We cannot give our unqualified assent to such a ruling. As stated above, parties have the legal right to ascertain whether or not jurors have a pecuniary interest in the litigation, and the exercise of this right necessarily authorizes them to elicit information from them on this subject. This, however, in no way gives counsel a license to communicate improper matters to the jurors, or to the court within their hearing, in connection with such inquiry. Such an examination should be held strictly within the limits of such right, and by direct question on the subject, unaccompanied by suggestion or comment from counsel which may convey improper and prejudicial information to jurors. In the instant case it appears that a colloquy took place between the court and counsel for both parties, following an objection by defendant’s counsel to a proper question, and that all made statements concerning the subject matter of this exception. The line of demarcation between prejudicial and nonprejudicial remarks of this character cannot be readily drawn. Each case depends largely upon the circumstances by which they are elicited, and their probable effect upon the jurors. Taking all that occurred between the court and counsel for both parties, in connection with the court’s rulings and subsequent instructions in regard thereto, we are led to the conclusion that the statement of counsel that the insurance company had insured defendant, made as it was in response to the court’s suggestion, does not constitute reversible error. Upon the ground first above stated the court should have granted defendant’s motion for a new trial. By the Court. — The judgment of the circuit court is reversed, and the cause is remanded for a new trial.