Sufferling v. Heyl & Patterson

Marshall, J. Complaints made respecting rulings on evidence have received the attention which, in the judgment of the court, they merit without our discovering any sufficient ground for disturbing the judgment. A reference to such rulings is omitted because no one of them seems to call for a decision respecting it of sufficient importance as a precedent to require discussion with references and a statement of reasons on principle or authority, or: both, why the ruling was either not erroneous, or, if otherwise, not harmful. The point is made that the claim of respondent in the complaint was that there was negligence in putting up and leaving in place for use the unsuitable hoist, while, on the trial, recovery was sought solely on the ground of negligence in using an unsuitable hoist by appellant’s servants with its knowledge, actual or constructive, thereof; that there was a fatal variance between the complaint and the evidence. Without conceding that, under the circumstances, there was such a variance, if the situation be as counsel suggest, it is the opinion of the court that the contention is based on a misconception of the complaint. It expressly, or by reasonable inference, states the ground of negligence counsel suggest was relied upon at the trial. The claim is made that there was no evidence that appellant knew of the unsuitable hoist having been substituted for the suitable one and, therefore, if there was any negligence on the occasion in question, it was merely negligence of defendant’s employees, and, notwithstanding they were servants of the general contractor and plaintiff was a servant of an independent subcontractor, all were,fellow-servants, and, therefore, the motion for a nonsuit should have been granted. That presents the question of whether servants of a general contractor and those of his independent subcontractor, all being engaged in executing a particular enterprise, as the construction of or repair of a building, are fellow-servants within the meaning of that term as used in the law of negligence. — 515 — The counsel’s deduction from the fellow-servant law seems to be illogical. It is elementary tbat the results of negligence of an independent subcontractor or tbat of bis servants imputable to him cannot be charged to bis principal. It must follow tbat servants of tbe latter are not fellow-servants witb tbe employees of the subcontractor. Tbe reason why a general contractor is not liable for tbe negligence of tbe servants of bis independent subcontractor is because there is no master and servant relation existing between such general contractor and such servants (Whitney & S. Co. v. O’Rourke, 172 Ill. 177, 50 N. E. 242), hence no duty and none of tbe responsibilities incident to such relation. As counsel fail to support tbe claim above suggested other than by assertion and tbe law seems quite elementary, as we have indicated, time will not be taken to further pursue tbe subject or to point to judicial holdings in respect thereto. Several errors are assigned upon tbe theory tbat defendant was not chargeable witb negligence of its servants in tbe use of tbe insufficient hoist unless it bad actual or constructive notice of tbe substitution thereof for tbe suitable hoist and notice, actual or constructive, of tbe insufficiency of tbe substituted appliance. Tbe court remarked in tbe presence of tbe jury during tbe argument tbat there could be no actionable negligence found unless tbe unsuitable hoist was erected witb knowledge of appellant, or tbe change was seasonably brought home to it before tbe accident. Also in submitting tbe case to tbe jury care was taken to explain tbat unless there was negligence on tbe part of appellant’s agent in charge of tbe work respecting tbe unsuitable hoist, tbe question on tbe subject of appellant’s wrongful conduct should be answered in tbe negative. Whether tbat was strictly correct or not we will not take time to consider. If it were not, tbe error was significantly in appellant’s favor. There was evidence to go to tbe jury on tbe subject, as we read tbe record. So tbe question strenuously claimed to be vital to tbe right to — 516 — recover was passed upon in respondent’s favor upon some-credible evidence. True, knowledge, actual or constructive, of appellant of the-existence of the unsuitable hoist was charged in the complaint and denied in the answer. Therefore, if that were a. vital matter, as the trial court and all parties concerned seem to have supposed it was, it should have been submitted to the jury by a specific question so framed as to direct attention to the precise matter, as requested by appellant’s counsel. Such is the command of the statute (sec. 2858, Stats. 1898), and such is the only proper administration of it, as has over and over again been decided. Lee v. C., St. P., M. & O. R. Co. 101 Wis. 352, 77 N. W. 714; Bigelow v. Danielson, 102 Wis. 470, 473, 78 N. W. 599; Schrunk v. St. Joseph, 120 Wis. 223, 97 N. W. 946; Olwell v. Skobis, 126 Wis. 308, 319, 105 N. W. 777. It were better that the special verdict law be administered according to its spirit and letter and to a somewhat technical degree where specific questions are requested covering well defined vital facts in issue. However, it is permissible for trial courts to exercise a considerable measure of discretion. Unless they exceed that field so as to prejudicially invade the statutory right to a special finding on the material issues of fact, as was the case in Rowley v. C., M. & St. P. R. Co. 135 Wis. 208, 115 N. W. 865, the importance of stability of initial determinations, except in case of a probable substantial wrong result being within reasonable probabilities, and of speedy economical termination of judicial controversies, require the beneficent statute, so. often referred to (sec. 2829, Stats. 1898), to be efficiently applied. Error is assigned because the trial court said to the jury: “By ordinary care is meant such care as a man of ordinary-care and prudence would have used under circumstances like-those disclosed in the testimony in this case.” That is a peculiar phrasing of the rule the learned trial judge purposed stating. It seems to be the one used generally — 517 — in the particular jurisdiction in question. It has been several times challenged as being wrong and been criticised. Hanlon v. Milwaukee E. R. & L. Co. 118 Wis. 210, 95 N. W. 100; Palmer v. Schultz, 138 Wis. 455, 120 N. W. 348. In the first case the question presented was whether the term “such care as a man of ordinary care” is substantially the same as “such care as the great mass of mankind,” and the •court said it covered the vital idea, but that the latter phrasing was preferable. In Palmer v. Schultz, supra, the same instruction was criticised, but passed as harmlessly inaccurate under the circumstances. It seems that it is also harmlessly imperfect in this case, but, inasmuch as this particular phrasing of ordinary care has been now three times suggested as not the best way to state the principle, and to the end that so simple a matter may be given to the jury in such a manner as to avoid such'frequency of attack and criticism, it is again suggested that the phrasing of the rule so often approved here be used: ordinary care in the abstract is such care as the great mass of mankind ordinarily exercise, and as applied to any particular case it is such care as the great mass of mankind ordinarily exercise under the same or similar circumstances. The court instructed the jury that: “In assessing damages in this case, gentlemen, you may ■allow plaintiff, by way of compensation, such sum as will reasonably compensate him for such pain and suffering and for such loss of time as the evidence satisfies you with a degree of reasonable certainty, is the natural and probable consequence of the injury which he sustained.” The instruction is faulty in that it is in form as if the jury were expected to award compensation to the plaintiff instead of merely to find, as a fact, what sum in money would be an equivalent for his loss. Again it is faulty in that it contemplates the existence of two or more degrees of reasonable certainty susceptible of being established by evidence in such a case, and the jury were left to understand, possibly, that a — 518 — fact affirmed by plaintiff to'exist and denied by tbe defendant, in order to be found was required to be established to-some one of the several degrees, while they were left, possibly, to imagine the nature of the different degrees. The-claim that the language was confusing is not entirely without merit, though we hardly think the jury could have been, prejudicially misled. They should have been told, substantially, that in answering the question they should name such sum as they found from the preponderance of the evidence to a reasonable certainty would be required to fairly compensate-plaintiff in money for such loss of time and such pain and suffering as they were so satisfied was chargeable to the injury. However, as suggested, it does not seem that the novel method of putting the matter could have reasonably worked any harm. The rule is that the material facts in issue in a civil ease,' in order to be found in favor of the party upon whom the burden of proof rests, must be established to the satisfaction-of the jury by a preponderance of the evidence to a reasonable certainty; — must be established by a preponderance of the evidence, is the common way of stating the matter, but that means to a reasonable certainty. The use of the latter-words has been approved (Pelitier v. C., St. P., M. & O. R. Co. 88 Wis. 521, 60 N. W. 250; Grotjan v. Rice, 124 Wis. 253, 102 N. W. 551), and failure to use them, when requested specially, unless the jury are adequately instructed otherwise, has been condemned (Ward v. C., M. & St. P. R. Co. 102 Wis. 215, 219, 78 N. W. 442). So, true, as the trial court-said, the jury were required to be satisfied from the evidence to a degree of reasonable certainty. They could hardly be satisfied to any such degree of certainty unless so satisfied from the evidence that the major probabilities were accordingly; in other words, without being satisfied from the preponderance of the evidence. They could hardly be satisfied from the evidence to a degree of reasonable certainty without — 519 — being so satisfied from tbe preponderance of tbe evidence to a reasonable certainty. It were better, however, that new and somewhat obscure and inaccurate methods of phrasing a simple proposition of law should not be indulged in. By the Court. — The judgment is affirmed.