Hocking v. Windsor Spring Co.

Siebecker, J. Upon the former appeal to this court it was held that the evidence before the court required submission of the case to the jury upon the issues of defendant’s negligence and plaintiff’s assumption of the risk of the dangers incident to the operation of the alleged defective machine. 125 Wis. 575, 104 N. W. 705. It is now contended that the evidence on these questions on this appeal materially differs from that of the former, in. that it now conclusively appears that by the chucking noises of the machine when operating, it plaintiff was apprised of the danger complained of and led to complain to the foreman that the machine was not in a safe working condition. An attentive reading of the evidence discloses no substantial difference as to the state of the proof on these questions on the two trials. It is also claimed that the evidence is undisputed that the part of the die produced by the plaintiff is not the one from which the splinter that injured him could have chipped, because it was not in use at the time of the accident, and for this reason it is claimed that the case is devoid of any showing that the injury is attributable to the negligence of defendant for failing to furnish him with a safe machine with which to work. There is evidence tending to show that two weeks after the accident this die was taken from a place near the machine where dies used in this machine were kept, that the splinter removed from plaintiff’s eye corresponded in form, shape, and grain to the crevice on the die, and that the material of the die and of the splinter was alike in hardness and iexture. The evidence that this die was not used is not so .conclusive in its nature as to absolutely rebut the permissible [537] inference -that the splinter came from tire die produced by plaintiff and that it was in fact in use when he was injured. This called for submission of this question to the jury, as the court ruled. Appellant alleges an exception to the reception of the evidence of witnesses testifying that they had made an examination and comparison of the splinter and the crevice in the die with the aid of a magnifying glass, and had tested the material of the die and splinter as to hardness' and similarity of surface and grain, and that from such examination and inspection theynould state that the splinter came from the crevice in the die. This testimony was competent and'proper. It tended to establish the identity of the die from which the splinter came and that the die was in use when the accident happened. Their observations were not within the range of common knowledge, but within a field wherein special knowledge and experience in these respects enabled them to form conclusions as to such facts, and this made such information proper evidence thereof. Another exception is urged to the evidence of witnesses who testified that the die was improperly set. They based their conclusion on the fact that it sheared, and that the knife of the die became loosened as it was operated, and on the marks appearing on the dies. This evidence related to the defect complained of and involved in the operation of the machine under the circumstances shown, and presented a situation wherein the jury could not form as reliable an opinion as an expert on the subject. Hence it was properly received and submitted in the case. A number of witnesses were permitted to answer, over defendant’s objection, the inquiry as to how often the machine wherein the die and punch knife were being used and operated by an inexperienced workman should be inspected by an experienced die-setter having charge of it. They answered in effect that such inspection should be made as often as once [538] each, half hour or once an hour. This question was propounded by plaintiff’s counsel at the court’s suggestion in ruling on an objection to- testimony. At the conclusion of the testimony plaintiff’s counsel requested that the answers of witnesses giving their opinion of the frequency with which such inspection should be made be stricken out, “and the jury requested not to consider their-statements as to their opinions as to how frequently they should be so inspected, with the understanding, however, that the testimony I also introduced, as to the custom of inspecting machines, be left in and be permitted to be considered by the jury.” The court ruled on this request, stating: “The motion is granted and the jury is so instructed.”' No further direction, or instruction was given on the subject. It is urged that the court’s action in this particular did no-t sufficiently inform the jury of the effect of the ruling, and thus prejudiced defendant by permitting them to take this testimony into consideration in determining the question of the negligence charged. True, the ruling as framed by the court is very tersely stated and might well have been amplified for an aid to the jury; but it must be taken in connection with the-language of counsel’s, request, which was made in their presence and specified what testimony he asked to have stricken-out and that the jury be instructed not to consider it in the case. His request explicitly demanded that the testimony be withdrawn from the case and the jury be requested not to-consider the statements given by these witnesses as to how frequently the machine and dies operated by an inexperienced workman should be inspected. This plainly conveyed the information that such evidence was removed from the jury’s-consideration, and the jury must have so understood it. • The-ruling is not so involved or so indefinite that it can reasonably be said that the jury were not informed of the action of the-court. The incompetency of Dr. Hawley as a witness in the case539 is alleged under cb. 426, Laws of 1903, which provides that no person shall have the right to collect any fees for medical or surgical services or “to testify in a professional capacity as a physician, or surgeon, or insanity expert . . . unless he or she holds a license” or a certificate and diploma, or a membership in a medical society, duly recorded as prescribed, and that nothing in the act shall restrict courts from receiving the testimony of any person in a criminal action. It is undisputed that Dr. Hawley was not a resident of this state and had not complied with the provisions of this statute. The doctor testified that he found that plaintiff’s eye had been injured by a cut from some object which passed into it and penetrated the lens; that he washed the eye, sent plaintiff to a hospital, and there removed the splinter from the eye with a magnet; and that he afterwards removed the eye. These facts are not disputed in the case. It is averred that this statute disqualified him to testify to any-pf the facts above stated,, because he is within the class of persons practicing medicine or surgery who are debarred from testifying “in a professional capacity as a physician, or surgeon, dr insanity expert in any case,” except criminal actions. We are of opinion that this contention gives to this statute a wider scope than its context warrants. Applying the language of the statute to the subject covered by the legislation, it is clear that persons prae-ticing medicine and surgery are thereby.deprived of the right to collect any compensation for such services, and “to testify in a professional capacity as a physician, or surgeon, or insanity expert,” unless they comply with the law. The phraseology of the law is quite clear and direct in expressing a legislative intent that such persons should be disqualified to testify as experts in their professional capacity. Such a disqualification, however, would not affect their competency to testify to facts not within the field of an expert. As to such matters their qualifications would be governed by the rules applicable to any other person. It is averred that the evidence of Dr. Haw540 ley was in its nature expert evidence of a physician and surgeon. The evidence, however, discloses that, aside from the statement that the splinter penetrated the lens, ^the doctor testified to nothing hut what was within the observation of any person, and this statement had no hearing on the controverted issues litigated. It could not have operated to defendant’s prejudice, since it was practically admitted that the eye was so seriously injured as to necessitate its removal. Under these circumstances we find nothing in the testimony of Dr. Hawley which should have been excluded from the case. It is averred that the court erred in not submitting in the special verdict, as requested, the question of whether plaintiff’s injuries were not the result of a mere or unavoidable accident. The question of defendant’s negligence was covered by the special verdict and the findings of the jury, which included a finding that such negligence was the proximate cause of the injury. Under these circumstances the subject of the -questions was covered and determined by the verdict rendered. As stated in Byington v. Merrill, 112 Wis. 211, 88 N. W. 26, “the answers to those questions necessarily covered the subject of whether the injury to respondent was the result of a mere accident, and the question requested upon that subject was very properly refused.” Several exceptions are preserved to the refusal to give some of the defendant’s requested instructions and to those given by the court on the subjects covered by them, defendant averring and claiming that prejudicial errors were committed in these respects. After an examination of them we are led to the conclusion that no such errors exist, and that but one of them requires specific attention at this time. In connection with an enumeration of the elements of past and future damages shown by the evidence the court gave the following instruction: “Plaintiff ... is entitled to recover for such loss of time as you are satisfied from the evidence he has reasonably sus541 tamed as a result of tbe injury; further, such sum as will fully compensate him for the loss of his eye and the disadvantage, disfigurement, and inconvenience it is reasonably certain from the evidence will result from such loss.” It is contended that the quoted part of the instruction is-misleading, in that it instructed the .jury that they might duplicate the damages by allowing full compensation for the loss of an eye, and for the elements of disadvantage, disfigurement,, and inconvenience resulting from it. While the instruction,, in its grammatical form, may be susceptible of such construction, yet it does not necessarily follow that the jurors so understood and treated it. In their application of it to the situation at hand they must have understood that the damages resulting from disadvantage, disfigurement, and inconvenience-were comprehended and included in the loss of the eye and therefore not additional to the damages occasioned by the loss-of it. This interpretation is reasonable, and treats the instruction in the, sense evidently intended by the court and understood by the jury. We cannot accede to the claim that the amount of damages awarded is excessive. In addition to the injuries resulting-from the loss of his eye, which need not be repeated here, it appears that plaintiff endured much pain and suffering on account of its treatment and removal and from the conditions consequent to such loss. We find no ground for declaring the amount to be in excess of an actual compensation for the injuries sustained. No other question suggested is deemed to require special attention. We find no reversible error in the record. By the Court. — Judgment affirmed.