Olwell v. Skobis

Cassoday, C. J. Eorty-two errors are assigned, and one of these has seven subdivisions. On the argument it seemed to be conceded that several of them, standing alone, were without merit. It has been held by a court of high authority that: “When the assignments of error axe very numerous, it is practically found necessary to consider but a few of them.” Grayson v. Lynch, 163 U. S. 468, 16 Sup. Ct. 1064. The rule of this court requires the brief of the appellant to state “the several errors relied upon for reversal.” Rule IX. This court should not be called upon to consider and determine exceptions not relied upon by counsel. The failure to mention assignments of error which are obviously without merit is certainly justifiable. Several of such errors relate to the admission of testimony as to the situation of the locus in quo and the circumstances under which the plaintiff was injured. As stated in the appellant’s brief, “the main controversy between the parties was whether or not the employees of the defendants were negligent or failed to exercise ordinary care in smoothing the water lip with their cold chisels.” That, of course, was a question of fact to be determined by the jury, under proper instructions from the court. Some of such testimony related to-the manner of doing such business by the employees of the defendants after the accident, but during the same forenoon on which it occurred. The evidence, however, tended to prove that such manner of doing the business was the same after the accident as before. We perceive no error in allowing the attending oculist to testify to the details of his treatment, tending to prove pain and suffering, nor in refusing a nonsuit, nor in refusing to direct a verdict in favor of the defendants, nor in refusing to change the answer of the jury to the second question submitted from the affirmative to the negative, whereby they found that the employees of the — 316 — defendants were guilty of a want of ordinary care in carrying on the work of chiseling iron in front of the office wherein the plaintiff was employed. There are some assignments of error calling for special consideration. 1. Error is assigned because the court, on the application of the plaintiff and showing made, allowed the summons and complaint to be amended by dismissing the action as against Frederick Pabst and allowing the proposed amended complaint, then on file, to stand as the plaintiffs complaint in the action and requiring these defendants to answer the same as stated. That occurred more than fifteen months prior to the trial, so there was no prejudice to the defendants by reason of the time of making the amendment. The particular objection made is that the action was originally brought against the three persons named jointly, alleging joint liability, and hence that no amendment of the complaint could subsequently be'allowed, over the objection of these defendants, which would deprive them of the right to invoke the one-year statute of limitation. Subd. 5, sec. 4222, Stats. 1898. But, as indicated, the action was commenced within the year, and the written notice of the injury was given to these defendants April 3, 1903, which was within “one year after the happening of the event causing such damage.” That notice was to the effect that the negligence of these defendants caused the injury. No objection is made to the form of the notice. The objection is that the original complaint alleged a joint tort against the then three defendants, and hence could not be changed by amendment so as only to allege a tort committed by these two defendants. But it is well settled and elementary that: “Where a tortious breach of duty is committed by two or more persons, each contributing to the injury as a joint tort-feasor, the plaintiff may at his election sue any one of them separately, or he may sue all or any number of them jointly.” 15 Ency. PI. & Pr. 5.57, citing numerous adjudications. — 317 — See Ellis v. Esson, 50 Wis. 138, 6 N. W. 518; Pogel v. Meilke, 60 Wis. 248, 18 N. W. 927; Bishop v. McGillis, 82 Wis. 120, 126, 51 N. W. 1075; Stolze v. Torrison, 118 Wis. 315, 321, 95 N. W. 114. In one of tbe eases cited by counsel for tbe defendant it was beld tbat: “If two defendants be sued jointly for a tort, and tbe evidence is not sufficient to bold one, there may be a discontinuance as to tbat one, and tbe trial may proceed as to tbe other.”' Dutton v. Lansdowne, 198 Pa. St. 563, 48 Atl. 494. Besides, such statute of limitation was not pleaded. ' 2. Tbe important question in tbe case is whether tbe court improperly refused to submit to tbe jury, by suitable questions or instructions, matters of fact put in issue by tbe pleadings. As indicated, the complaint alleged, in effect, tbat tbe defendants neglected to perform tbe duty they owed to tbe plaintiff in “carrying on said repairs and work and tbe cutting or chipping of all iron to be by them done, in theusual safe and workmanlike manner, by directing tbe chips and cuttings from such iron away from tbe door of sa-id premises, and by placing a board or shield near thereto in such a manner as to protect this plaintiff while passing through said door while tbe cutting and chiseling of all iron near thereto was in progress.” And again, tbat tbe “defendants were negligent-in tbe chiseling, cutting, and removing of said iron, in tbat they failed to do tbe same in ike usual safe-and-workmanlike manner, and in tbat they caused tbe said iron to, be removed in such a manner tbat tbe cuttings and cbippings therefrom were thrown toward and against tbe door of said office, and in such a manner as to imperil tbe safety of a person using tbe same, in tbat they failed to use a board or shield to guard or protect tbe said doorway from such cbippings and cuttings, so as to avoid accident and injury in tbe doing of said work,” and in tbat they failed to warn the plaintiff of such -danger. Such several allegations of the amended complaint were put in issue- by tbe denials in tbe answer. Certainly there was — 318 — nothing in the special verdict submitted requiring tbe jury to determine whether such cutting and chipping of iron was done by the defendants “in the usual safe and workmanlike manner” thus alleged. Nor was there anything in the charge of the court requiring the jury to consider, much less determine, that question in the special verdict so submitted. The court refused to submit to the jury a question as to whether “the work of smoothing the iron water rib” was done by the defendants, “in all respects, in the usual and ordinary way generally pursued in doing such work in like locations and under similar circumstances by workers in iron in Milwaukee and vicinity.” Counsel for the plaintiff contend that the question so requested was defective, in that it limited the inquiry to the mere work of smoothing the iron water rib, and also limited the inquiry to the way generally pursued by workers in iron in Milwaukee and vicinity. There seems to be much force in the criticism. The true test is that degree of care which is ordinarily observed by men of ordinary care and prudence, or by men generally, engaged in the same or similar business, under the same or similar circumstances. Guinard v. Knapp-Stout & Co. Co. 95 Wis. 482, 70 N. W. 671; Rylander v. Laursen, 124 Wis. 2, 102 N. W. 341. But the request called the attention of the court sharply to the subject. It was followed by another request, covering one of the issues thus made by the pleadings, which reads: “In smoothing the iron water rib upon the north edge of the Hyatt light frame in front of the office room referred to, in the manner in which that work was done, did the employees of the defendants exercise such care as is generally and usually exercised under similar circumstances by persons in the same line of business, engaged in doing similar work ?” This request is not as concise as it might have been, but it covered one of the issues in the case. Of course, as often said by this court, the particular form of the verdict in all such cases is very much in the discretion of the trial court. The — 319 — ■statute requires tbe trial court, when requested iu time, as bere, to “direct tbe jury to find a special verdict ... in tbe form of questions, in writing, relating only to material issues of fact and admitting a direct answer, to wbicb tbe jury shall make answer in writing.” Sec. 2858, Stats. 1898. That statute has frequently been construed “to limit such questions to such facts as are controverted and put in issue by the pleadings, or, at most, to such as might properly have been put in issue by tbe pleadings.” Lee v. C., St. P., M. & O. R. Co. 101 Wis. 352, 362, 77 N. W. 714; Zimmer v. Fox River V. E. R. Co. 118 Wis. 614, 618, 95 N. W. 957, and cases there cited. This court has frequently held that, even where tbe questions submitted for a special verdict in an action for injuries by negligence cover in a general way all phases of tbe •defendant’s negligence, yet under tbe provisions of tbe statute ■cited tbe court should submit to tbe jury tbe particular physical facts directly put in issue by tbe pleadings when properly requested so to do. Lee v. C., St. P., M. & O. R. Co., supra; Bigelow v. Danielson, 102 Wis. 470, 473, 78 N. W. 599. As said by Mr. Justice Bardeen in one of tbe cases cited: “A special verdict is that by wbicb tbe jury find tbe facts •only, leaving tbe judgment to tbe court. . . . Too much emphasis cannot be laid upon this requirement. . . . Tbe true office of a special verdict is to single out tbe issuable facts of tbe case upon wbicb tbe defendant’s obligation rests. Tbe questions should be so framed as to present, in as clear' and sharp a way as possible, tbe real issues concerning wbicb proof is offered, so that, when determined by tbe jury, tbe court may apply tbe law and render judgment accordingly.” Bigelow v. Danielson, supra. A general verdict would have covered all phases of tbe defendant’s negligence, but tbe defendants bad tbe right, under tbe statute cited, to a special verdict. But, as indicated in tbe •cases cited, a special verdict wbicb is but little more than a general verdict in sections is not in conformity to tbe requirements of tbe statute. Lee v. C., St. P., M. & O. R. Co., — 320 — supra; Bigelow v. Danielson, supra; Sladky v. Marinette L. Co. 107 Wis. 250, 259, 83 N. W. 514. In a late case, where the evidence tended to show that the condition of the highway; at the time of the accident was owing to an extraordinary flow of water, Mr. Justice Marshall said: “That was an important feature of the case. The fact in regard thereto was in issue by the pleadings. It was one of more significance than a mere evidentiary circumstance bearing on the question of whether the highway was reasonably safe or not. It was, if it existed, one which the town authorities were, as a matter of law, not bound to provide against.” Schrunk v. St. Joseph, 120 Wis. 223, 228, 229, 97 N. W. 946. It was there held that as that question was put in issue by the pleadings it should have been submitted to the jury as a part of the special verdict. As held in that case, the question so at issue and which the court so refused to submit to the jury was “of more significance than a mere evidentiary circumstance bearing” upon the question of thé defendant’s negligence. Of course, this court has many times declared that such special verdict was not designed to elicit from the jury a mere abstract of the evidence, nor even a single evidentiary fact not so put in issue and material. Cullen v. Hanisch, 114 Wis. 24, 31, 89 N. W. 900; Zimmer v. Fox River V. E. R. Co. 118 Wis. 614, 617, 618, 95 N. W. 957. Counsel for the defendant sought to have the question mentioned covered by the jury in an instruction to be given under1 the second question submitted, to the effect that if the defendants were carrying on the work “in the way that such work in like locations and under similar circumstances was usually and ordinarily carried on throughout the city of Milwaukee and vicinity generally, then the employees of the defendants were not guilty of any want of ordinary care in so carrying-on such work, and although an injury did result to the plaintiff, yet, nevertheless, if you find that said employees of de — 321 — fendants ivere carrying on the work in the usual and ordinary way of carrying on sneb work under similar circumstances, your answer to the second question will be no.” "While such instruction would have been defective in so far as it limited the inquiry to Milwaukee and vicinity, as already indicated, yet it served'to call the attention of the court again to the question so at issue and not submitted to the jury. We must hold that the failure to submit such question to the jury was error. 3. True, the portion of the complaint above quoted alleges that the defendants were negligent in failing to place or use a board or shield to guard or protect the doorway of the office in which the plaintiff was so employed and the plaintiff from such (shippings and cuttings; and such allegations of the complaint were put in issue by the answer. If such cutting and chipping was done negligently and not in the usual safe and workmanlike manner for doing such work, by reason of the absence of such board or shield, then, as indicated in the quotation from one of the cases cited, it was “of more significance than a mere evidentiary circumstance.” Such physical fact, however, was not specifically submitted to the jury, and no request was made to have it so submitted. In the absence of such request we cannot say that there was error in failing to. submit it. Nevertheless, the presence or absence of sucha, board or shield was open to proof by the respective parties ¡ under the second and third questions of the special verdict SO) submitted to the jury. We perceive no error in allowing the plaintiff to prove by a witness who was there about the time in question, and while such cutting and chipping was going on, that he saw nothing “interposed between the flying chips and the front of the building,” and that there was nothing. The plaintiff certainly had the right to prove the situation and the manner of doing the work at the time of the injury. But the principal ruling complained of in that regard is that — 322 — the plaintiff was allowed on rebuttal to testify that there wás no board about sis inches wide standing upon its edge across in front of the door and a foot or more south thereof. It certainly would have been more proper for the plaintiff to have made such proof before resting her case, since the absence of such board or shield was affirmatively alleged in the complaint. But the order of proof, from necessity, is always very much in the discretion of the trial court; and in mating the ruling the trial judge remarked that he allowed the testimony “so far as this plaintiff is concerned, because she had not testified on that subject at all.” Besides, the court had, on the defendants’ objection, excluded a question put to the plaintiff’s first witness, as to “whether there was at that time any board or other protection between the water lip and the door.” Having erroneously excluded such testimony on the defendants’ objection, there was some excuse for admitting such testimony on rebuttal. The burden of that issue was evidently on the plaintiff. The same is true as to the evidence of the service of notice of the plaintiff’s claim of injury. 4. Error is assigned for permitting testimony to the effect that the business of chipping cast iron with a cold chisel and hammer is a “very dangerous” business or occupation. The ground for the objection is that it calls for opinion evidence in a matter not involving science, art, or skill, and therefore was not admissible. The general rule also “includes the evidence of common observers testifying to the results of their observation made at the time in regard to common appearances, facts, and conditions which cannot be reproduced and made palpable to a jury.” 5 Ency. of Ev. 654; Snyder v. W. U. R. Co. 25 Wis. 60. “The admission of expert testimony is based on the general ground that the witness is speaking of a matter concerning which he has peculiar means and sources of information not enjoyed by other persons engaged in other and different occupations.” Lawson, Expert & Opin. Ev. (2d ed.| 239. — 323 — But tbe same author says: “The opinion of an expert is inadmissible where the subject is one not of special skill or knowledge, but of general observation or "experience, or which can be better answered •by persons in another calling, or is upon a question which the court or jury can themselves decide on the facts.” Page 238. See 3 Wigmore, Ev. § 1951, giving a great variety of illustrations. Mr. Jones says: “Clearly it is not the province of the expert to act as judge ■or jury. Hence all questions calling for his opinion should be so framed as not to call upon him to determine controverted questions of fact, or to pass upon the preponderance of testimony.” 2 Jones, Ev. § 374; Maitland v. Gilbert P. Co. 97 Wis. 476, 484, 72 N. W. 1124; Green v. Ashland W. Co. 101 Wis. 258, 270, 77 N. W. 722; Daly v. Milwaukee, 103 Wis. 588, 79 N. W. 752; Miles v. Stanke, 114 Wis. 94, 89 N. W. 833; Lyon v. Grand Rapids, 121 Wis. 609, 619, 620, 99 N. W. 311. The latest case on the subject in this court is Lounsbury v. Davis, 124 Wis. 432, 102 N. W. 941, 943, 944, where it is said by my Brother Siebecebe, that: “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 in■quiry, 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.” ■ And he further quotes from one of the earlier cases above cited that: “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.” — 324 — There are numerous eases where this court has held it to be reversible error for a witness to give his opinion that a public highway was unsafe or dangerous. Under the authorities; cited we must hold that the question whether such cutting and chipping of the iron was dangerous was a question of fact for the jury. 5. Error is assigned because the court charged the jury that: “If . . . you shall be satisfied by the preponderance . . - of all the evidence that the employees of the defendants, in carrying on the work of chiseling iron in front of the office in question, under the circumstances disclosed in this case,, did not use the care which the great majority of men would have used under the same or similar circumstances, then your answer to this question will be yes; otherwise, it will be no.”' The criticism is to the use of the words “the care which the great majority of men would have used,” instead of saying “the care which the great majority of men ordinarily exercise;” citing Nass v. Schulz, 105 Wis. 146, 150, 81 N. W. 133. The true test of such care is stated above in somewhat different language. While the wording of the portion of the charge quoted may be open to criticism, yet it seems to have some sanction in decisions of this court; and we cannot believe that the jury were misled by it. Olwell v. Milwaukee St. R. Co. 92 Wis. 330, 334, 66 N. W. 362; Boelter v. Ross L. Co. 103 Wis. 324, 330, 79 N. W. 243; Chase v. Blodgett M. Co. 111 Wis. 655, 660, 87 N. W. 826. Upon such a delicate question it is always wise to adhere to the most approved statement of the law and thus avoid all criticism. 6. Error is assigned because the court charged the jury upon the question of proximate cause as follows: “When we speak of the proximate cause of an injury, we mean not only the natural cause of the injury, but also such a cause as ought, under the attending circumstances, to be-reasonably expected, by a person of ordinary intelligence and prudence, to produce injury to another. Or, in other words,. — 325 — ought ail injury to another, in the light of the attending circumstances, to have reasonably been foreseen or expected as the natural result of the act or omission complained of ?” The claim is that the second portion of the charge thus quoted is erroneous in using the words “natural result,” instead of saying the “natural and probable result.” But we are constrained to hold that the language quoted does in substance include the words thus claimed to have been improperly -omitted. The question thus presented is quite similar to the question presented in a recent case in this court. Feldschneider v. C., M. & St. P. R. Co. 122 Wis. 423, 430, 431, 99 N. W. 1034. In that case the words “natural and probable result” were both omitted from the charge; and, after quoting the approved rule from a former decision of this court, it was there said that: “The ideas here expressed may doubtless be well expressed in other language, but no reason for material variation from this definition is perceived, and we cannot too strongly urge upon trial courts that it be substantially or literally followed in personal injury cases.” The same is true in the case at bar. 7. Error is assigned because the verdict is excessive. We are constrained to hold- that the damages assessed by, the jury are grossly excessive: As already indicated, this case must go back for a new trial by reason of errors mentioned. Nevertheless, it will be promotive of the ends of justice to suggest an amount which would not be deemed excessive upon substantially the same evidence as to damages as appears in this record. Such practice seems to have the sanction of this court. Goodno v. Oshkosh, 28 Wis. 300; Patten v. C. & N. W. R. Co. 32 Wis. 524, 536; S. C. 36 Wis. 413, 416; Collins v. Janesville, 107 Wis. 436, 438, 441, 83 N. W. 695; S. C. 111 Wis. 348, 358, 87 N. W. 241, 1087; S. C. 117 Wis. 415, 94 N. W. 309. Of course, there is no exact rule for estimating damages in such a case. Several cases in this court have been — 326 — collated in. Rueping v. C. & N. W. R. Co. 123 Wis. 319, 325, 326, 101 N. W. 710. We also refer to cases in other jurisdictions where verdicts from $2,000 to '$5,000 for the loss of an eye have been held not to be excessive. Lemser v. St. Joseph F. Mfg. Co. 70 Mo. App. 209; East St. Louis v. Dougherty, 74 Ill. App. 490; Johnson v. Mo. Pac. R. Co. 96 Mo. 340, 9 S. W. 790. In the case at bar we are constrained to hold that a verdict of more than $6,000 upon substantially the same evidence as to damages as in this record would be deemed to-be excessive. There are no other questions calling for consideration. By the Court. — The judgment of the superior court of Milwaukee county is reversed, and the cause is remanded for a new trial.