Hamann v. Milwaukee Bridge Co.

Dodge, J. The appellant first contends that there was no1 evidence from which the jury could find that the method adopted for lowering the machine in question was not reasonably safe. It supports such contention almost entirely upon the ground that plaintiff failed to prove that the general custom of doing such work among other manufacturers was discordant from the method adopted by the defendant. Such failure might be conceded arguendo, and still appellant’s main contention fail to result. When the facts are made known to a jury, and especially when it is proved that there is a feasible safer method frequently or sometimes adopted by others for performing the same work, a situation is presented for the exercise of judgment as to whether the method pursued was reasonably safe. True, this may be supplemented by proof of a general custom to exercise greater precautions or adopt greater safeguards, but such proof is by no means necessary [43] to the establishment that the mode adopted by defendant was unreasonably perilous, or, in other words, not reasonably safe. Powalske v. Cream City B. Co. 110 Wis. 461, 467, 86 N. W. 153; Parker v. Fairbanks-Morse Mfg. Co. 130 Wis. 525, 110 N. W. 409. The authorities cited by appellant are to the position that, when it is proved that an apparatus or a method of procedure is unnecessarily dangerous, the party liable may avert the conclusion that it is unreasonably so by proving a general custom amongst others similarly situated to use such appliances or such methods. Boyce v. Wilbur L. Co. 119 Wis. 642, 97 N. W. 563; Yazdzewski v. Barker, 131 Wis. 494, 111 N. W. 689. There was abundant proof of the feasibility of using certain precautions and safeguards against the peril from which plaintiff’s decedent suffered, and that they were often applied by others; and even if such evidence did not go to the extent of proving a general custom, it was sufficient to warrant a finding of the jury by the answer to the first question of the special verdict that the method was not reasonably safe. The next contention is that a verdict should have been directed for the defendant for the reason suggested in the opinion of this court upon the former appeal, namely, that there was no evidence to justify any reasonable inference that any of the perils pointed out in the method of doing the work, or all of them together, in any wise caused the machine to1 capsize and to injure the deceased; that any conclusion to that effect must have been the result of mere conjecture and not rational inference. We cannot sustain this contention. In the statement of facts we have pointed out many respects in which the evidence on the last trial varied from that on the former, in that it tended to show both opportunities for the narrowness and irregularity of the base to cause the machine to tip over, and also to prove the probability, within ordinary natural events and influences, that they did in this instance cause it. We do not think it necessary to go further than [44] state our conclusion that the evidence did present justification for a rational .inference of causal relation between the perils set forth in the complaint and the overturning of the machine. In close connection with this discussion is a complaint of the form of the special verdict and insufficiency thereof to support the judgment. In this respect it must be borne in mind that it was not necessary for the jury to find either that the defendant was negligent in adopting the method or that the lack of reasonable safety characterizing such method was the proximate cause of the injury. As pointed out in our former decision, the perils of that method being unquestionably known to defendant’s superintendent at least by the time the machine had descended one half the distance to the floor and some considerable time before it capsized and injured the deceased, it became his duty on behalf of the defendant, in the exercise of due care, to notify deceased thereof. This the jury has found he failed to do and that such failure was the proximate cause of the injury. Such findings have support in the evidence and of themselves present a basis from which the defendant’s liability for the damages results in the absence of contributory negligence, which the verdict negatives. Error is assigned upon several refusals to give instructions requested by defendant. The first two of these assignments are predicated upon the refusal of the court to select certain isolated evidentiary facts or circumstances and instruct the jury with relation to the weight thereof. Without discussing their propriety had the trial court seen fit to give them, we must hold, in accordance with numerous decisions, that his refusal to thus invade the province of the jury, or to discuss the effect of segregated items of evidence disassociated from other facts and circumstances affecting their weight, was not error for which the judgment can be reversed. Seiler v. Stale, 112 Wis. 293, 303, 87 N. W. 1012; Duthey [45] v. State, 131 Wis. 178, 190, 111 N. W. 222; Till v. State, 132 Wis. 242, 247, 111 N. W. 1109. An instruction was requested that, in weighing the evidence as to the existence of a general custom to use certain precautions, the jury must confine themselves to what was done by manufacturers and dealers in and purchasers of machinery, and that any custom among movers of machinery should have no bearing. We very gravely doubt the correctness of such rule, for it seems to us that a man whose business is to move or unload such machines may often very well be considered as operating under similar circumstances to the proprietor of a factory performing the same work. But apart from such consideration, we think it plain that the court adopted appellant’s view of the law on this subject and adequately expressed it to the jury in charging them that the proofs which they might consider must be confined to the custom “of manufacturers handling like machines under like circumstances.” Numerous assignments of error are based upon the admission of evidence. A witness gave testimony with reference to his experience in unloading a machine of more or less similarity to the one in question. This was done in the course of describing his experience as preliminary to testimony as to precautions which he had known to be exercised by others and to custom. It bore upon the qualifications of the witness, and we think was entirely within the discretion of the trial court to admit on that subject. No request was made to limit its effect. A witness was permitted to testify that certain similar machines received at the same time with this and unloaded by the defendant were unloaded by means of a steam crane, and then over objection he was permitted to testify why that crane was not used in unloading this machine, giving a perfectly cogent reason. The evidence, if it had any effect, certainly tended to relieve the defendant from a charge of negligence [46] in not using the crane on this machine, and we are unable to conceive any prejudice which, could have resulted to' the defendant. Apparently the purpose of the evidence was to show that the deceased had never before been called upon to aid in unloading such a machine in the manner adopted on this occasion, to disprove his knowledge of the danger. We can discover no error in these rulings. Error is assigned upon the admission of evidence as to the health of plaintiff and as to the number of her children. The propriety of admitting such evidence has been declared by this court. Lawson v. C., St. P., M. & O. R. Co. 64 Wis. 441, 24 N. W. 618; Abbot v. McCadden, 81 Wis. 563, 51 N. W. 1079. The jury were properly cautioned that the plaintiff was entitled to recover only for the pecuniary damage resulting to herself from the death of her husband. Numerous other detail errors are ássigned upon the admission of specific items of testimony, but they do not seem to us to present anything of sufficient gravity or prejudice to warrant discussion in this opinion. We are satisfied they present no warrant for reversal. A supplemental case printed by the respondent seems to us quite unnecessary to a fair presentation of the merits of this appeal. No costs will be taxed therefor. By the Gowt. — Judgment affirmed.