Johnson v. St. Paul & Western Coal Co.

WiNsrow, J. The errors claimed by the appellant will be briefly considered. 1. It is contended that there is no sufficient proof to show that the hook and sheave hit the plaintiff, but that it is conclusively shown that the hook and sheave were not elevated above the deck. It is true there was evidence from a number of witnesses that the hook was not raised above the deck at the close of work on tire night of the accident, but remained suspended n foot or more below the deck all night. There is, however, the positive evidence of one witness, a boy nineteen years of age, who testifies that he was standing on the deck of the boat, about twenty-five feet from the plaintiff, and was looking towards him at the time the whistle blew; that he saw the hook and block come out of the hatch quicker than was ■usual when the bucket was on, and swinging lengthwise of the 'boat toward the plaintiff; that he saw the plaintiff stoop to pick up his box, and that he just straightened up and then fell over into the next hatch. Another witness, who was at work in the hold pushing buckets under another hatch at the time, from twenty to twenty-five feet distant from the place where the boy fell, testifies that he saw the boy fall, and went to him — 499 — as soon as be fell; tbat be struck on bis bip first, and tben on bis back; tbat witness tben started up the ladder and holloed to the foreman to telephone for a doctor, and went back and beard some one say, ‘‘The book bit him.” This exclamation was clearly a part of the res gestee of the accident. The plaintiff testified tbat be turned and picked up bis box and was just straightening himself up when be saw something black right against bis cheek, and tbat was the last be remembered till be regained consciousness for a moment in the bold after bis fall. In addition „to this it was shown tbat the plaintiff’s right cheek was swelled and discolored as though it bad been bit by something, and tbat the swelling was visible ■for two or more weeks. In view of the fact tbat there was nothing else swinging which could have bit the plaintiff, we regard this evidence as entirely sufficient to carry the question to the jury. 2. It is claimed tbat there was no proof tbat Mertes, the boister, was guilty of any negligence. The negligence claimed by the plaintiff is tbat the boister started the book and block Avitb a jerk, and very rapidly,-thus causing it to swing violently, when the custom was to raise the book, when empty, more slowly than when it was loaded. The evidence tended to show tbat it was entirely possible for the boister to regulate, within certain limits, the speed with which the book or the book and bucket came up. "While it was shown tbat the power •shaft always ran at substantially the same rate of speed, it also appeared tbat the power was communicated to the drums by friction wheels, and tbat the boister could regulate the application of the friction by means of his levers, so that the ■drums would revolve at a moderate rate of speed or at a greater rate, as be chose, and could start the book gently or with a jerk. The evidence tended also to show tbat when the boister received the signal to raise the book at the time in ■question be started more rapidly than was usual with an 'empty book, and gave it a jerk which set it swinging violently, — 500 — and that as it was coming np it struck the iron at the side of the hatch, thus increasing the swinging motion. Alertes himself testified as follows: “When he [plaintiff] hollered of course he picked up his box and went away, so I paid no more attention to him. So I just raised up out of my position, and I ketched the lever with both hands, and this line had the hook on it. They had thrown the hook, and the hook was swinging, and she came up swinging in that position; but I didn’t stop. She struck Tinder the steel, and the hook jumped up. I kept on going just the same. I didn’t stop till I seen the man come running. lie stopped me.” Comment on this seems unnecessary. It affords ample ground for a finding that the hook was raised with negligent speed and swinging violently. 3. Again, it is contended that the plaintiff assumed the risk as matter of law, or was at least guilty of contributory negligence, because he did not watch the hook and steady it with his guide hook until it came above the deck, as it is claimed his duty was to do. Upon the first point it is enough to say that there was sufficient evidence tending to show that it was customary to raise the empty hook at moderate speed, and there was practically no evidence that the plaintiff had any reason to expect that Alertes would raise it with a jerk or with great rapidity at the time in question. It cannot be said as matter of law that the plaintiff assumed a risk of which he was uninformed and which he had no reason to expect. Upon the second point it is true that there was considerable evidence to the effect that it was the plaintiff’s duty to remain after the whistle blew and watch the hook until it swung clear of the deck, and steady it if swinging; but there was also some evidence to the contrary, and there was no evidence that the plaintiff had ever been told that such was his duty, while, on the contrary, he testified directly that he had never been so informed. We perceive no other ground upon which it could possibly be claimed that plaintiff was guilty of contributory negligence as matter of law. — 501 — In. this connection it is said that it was error not to submit the question of assumption of risk to the jury by separate question in the special verdict. This court has held that assumption of risk is a form of contributory negligence; hence a negative answer to the general question covering contributory negligence logically includes also assumption of risk, in the absence of a special question as to that special phase of contributory negligence. Hennesey v. C. & N. W. R. Co. 99 Wis. 109, 74 N. W. 554; Dugal v. Chippewa, Falls, 101 Wis. 533, 77 N. W. 878. No special question was asked, nor instruction presented, on the question of assumption of risk; hence no error can be predicated upon the failure of the court to submit a separate question covering it. 4. Some complaint is made in appellant’s brief of the unsatisfactory character of the .evidence relied on to show that Mertes was an incompetent and careless hoister; but, as no error is assigned upon any of the rulings admitting such evidence, we are relieved from considering the correctness of the rulings. The broad claim is made, however, that the evidence was insufficient to prove incompetency. The testimony on this point was considerable in volume. It consisted of testimony of various co-laborers to the effect that Mertes frequently jerked the buckets violently; that he would drop the bucket down till it struck hard on the floor of the boat; that at times he ran the carriage off the track; that he dropped coal more than other hoisters by jerking the buckets; that he smoked while on duty, which was against the rules; that he had the reputation of being a careless hoister; and that when the men swore at him on account of his carelessness in handling buckets he laughed at them. There was proof not only of specific instances of carelessness, but also of habits of carelessness and of reputation. Without attempting to state the testimony in detail, it must be sufficient to say that it seems amply sufficient to warrant the finding of the jury on that point. There was also much evidence that his negligent and careless habits were known to the foreman of the dock, who — 502 — bad supervision of tbe work of tbe boisters and otbei’ employees, witb power to discharge in case of ineompeteney. Notice of ineompeteney to sucb an employee is notice to tbe principal. Baltimore & O. R. Co. v. Henthorne, 13 Fed. 634, 43 U. S. App. 113. 5. Tbe following instruction, requested by defendant, was-refused,'and error is claimed because of sucb refusal: “You are instructed tbat if tbe defendant used reasonable care in tbe employment of tbe boister, Mertes, and was satisfied tbat be was a fit and competent man to perform tbe duties-of boister, tire defendant performed bis full duty, and is not liable for a careless act of tbe boister, unless tbe boister, between tbe hiring of -tbe boister and tbe time of tbe accident, became incompetent and tbe defendant bad knowledge thereof.” There are two answers to this assignment: First, tbe instruction is one touching tbe general question of the liability of tbe defendant, is not applicable to any of tbe questions of fact submitted by tbe special verdict, and hence could not properly be given to tbe jury. Second, it is erroneous because it requires that tbe defendant should have actual knowledge of tbe subsequently acquired ineompeteney of tbe servant, whereas it is sufficient if in tbe exercise of reasonable care tbe defendant should have ascertained tbe fact of sucb incompetency. Kamp v. Coxe Bros. & Co. 122 Wis. 206, 99 N. W. 366. 6. Tbe court instructed tbe jury that “ordinary care in sucb a case is such care as tbe great mass of mankind would have exercised under tbe same circumstances.” It is claimed that this definition is erroneous because it did not also add the words “engaged in a similar employment.” It seems sufficient to say in answer to this tbat tbe words “under the same circumstances” necessarily include tbe idea of a similar employment. Tbe definition seems sufficiently accurate, under tbe recent case of Pumorlo v. Merrill, 125 Wis. 102, 103 N. W. 464, though it would be more accurate bad it read “sucb — 503 — care as tbe great mass of mankind ordinarily (or usually) exercise under tbe same or similar circumstances.” 7. Tbe deposition of James Patton, an officer of tbe defend-' ant company and tbe superintendent of tbe dock, was taken • before tbe trial under tbe provisions of sec. 4096, Stats. 1898, and was received and read in evidence against tbe defendant’s objection, based on tbe ground tbat tbe witness was present in court. It is contended tbat tbis was error under tbe ruling of this court in tbe case of Hughes v. C., St. P., M. & O. R. Co. 122 Wis. 258, 99 N. W. 897. In tbat case tbe depositions of a conductor and engineer of a railroad train, taken under sec. - 4096 as amended by cb. 244, Laws of 1901, were beld not to be admissible wben tbe witnesses were present at tbe trial, on tbe ground tbat they were mere employees, and in no sense parties to tbe action. In Meier v. Paulus, 70 Wis. 165, 35 N. W. 301, it was beld tbat tbe examination of a party to tbe action taken under sec. 4096 was a substitute for tbe old bill-of discovery, and was admissible as original evidence in tbe nar ture of an admission. Since tbat decision tbe section aforesaid has been amended, so tbat in case a private corporation be a party tbe examination of tbe president, secretary, or other principal officer of tbe corporation, or of tbe person wbo was such president, secretary, officer, agent, or employee at tbe time of tbe occurrence of tbe facts which are tbe subject of tbe examination, may be taken under it. In tbe present case tbe examination of Patton was not tbe examination of a mere employee as in tbe Hughes Case, but tbe examination of an officer wbo, under tbe evidence, must be beld to be one of tbe principal officers of tbe corporation. Tbe question is simply as to tbe meaning and intent of jbe statute as amended. Eairly construed, does it make tbe president, secretary, or other principal officer of a corporation in effect a party, so that bis examination becomes independent evidence in tbe case, notwithstanding bis presence in court ? It seems to us quite obvious tbat tbis question must be answered in tbe af — 504 — firmative. Tbe apparent effort was to give the right to obtain discovery in cases to which a corporation is a party as fully as in cases where an individual is a party. This effort would certainly be defeated if it be held that the examination cannot be read in evidence in case the officer be present in court. Viewing the statute in the light of the defect to be remedied, we think the reasonable construction is that the examination of the officer named becomes the examination of a party, and may be introduced in evidence against the corporation, under the doctrine of the case of Meier v. Paulus, supra. 8. It is contended that the damages, even as cut down by the trial court, are excessive. The injuries resulting from a fall of nearly thirty feet were necessarily quite severe at the time. Whether there are resulting permanent disabilities was a question in dispute by the experts. The boy was still suffering some ill effects at the time of the trial of the action, more than three months after the accident. We have examined the evidence and do not feel that we can say that the damages finally adjudged are excessive. By the Court.- — Judgment affirmed.