Monaghan v. Northwestern Fuel Co.

BabNes, J. The appellant assigns as error: (1) The refusal of the court to give certain instructions which were requested; (2) the charge of the court under the first question in the special verdict; (3) failure of the court to give any charge in relation to the second question in the special verdict; (4) giving an erroneous definition of proximate cause; (5) receiving incompetent testimony prejudicial to the de — 461 — fendant; (6) prejudicial and improper remarks made to tbe jury by plaintiff’s counsel; (I) refusal of tbe court to direct a verdict in defendant’s favor, (a) because tbe gearing upon wbicb plaintiff was injured was sufficiently guarded or fenced, and (b) because tbe plaintiff was guilty of contributory negligence; (8) refusal to set aside tbe verdict because the damages assessed were excessive. 1. No exception was taken to' tbe refusal of the court to give tbe instructions requested, bence tbe rulings, of the trial judge in this regard cannot be considered in this court. 2. By tbe first question in' tbe special verdict tbe jury was asked: “Was tbe machinery in wbicb plaintiff was injured so located as to be dangerous to employees in tbe discharge of their duties?” Tbe court charged the jury: “In answering this question you will consider, among other things, tbe location of tbe machinery in question with reference to where it became.reasonably necessary for employees to be situated or placed in tbe discharge of their duties in and about it, and its situation and surroundings as shown by tbe evidence.” Tbe criticism upon tbe charge is tbe use of tbe words “among other things;” it being urged that tbe instruction permitted tbe jury to consider matters outside of tbe evidence. In answering tbe question there were a number of things that tbe jury might very properly have considered aside from tbe specific ones mentioned by tbe court, as, for instance, tbe height of tbe railing, its proximity to tbe gearing, and tbe extent to wbicb the vision was obscured by coal dust, as well as other items of evidence. Presumably tbe jury understood that tbe “other things” they might consider should be restricted to such things as were shown by tbe evidence. In tbe absence of a request to charge that extraneous matters should be excluded from consideration, we do not think any prejudicial error was committed, if it be conceded that tbe language used was not as guarded as it might have been. 3. No request was made upon tbe court to give any charge — 462 — in relation to tbe second question in tbe special verdict. In tbe absence of sucb request no error resulted. Newton v. Whitney, 71 Wis. 515, 46 N. W. 882. Moreover, we do not End any exception in tbe record to raise this question. 4. Tbe definition of “proximate cause” given by tbe court was taken verbatim, from Deisenrieter v. Kraus-Merkel M. Co. 97 Wis. 279, 288, 72 N. W. 735, wbieb definition is approved in Feldschneider v. C., M. & St. P. R. Co. 122 Wis. 423, 431, 99 N. W. 1034, and in other cases, and it is undoubtedly one tbat is very generally given by trial courts. It is probable tbat counsel could improve on this definition, but it bas been so often laid down for tbe guidance of trial courts, and they bave been so frequently admonished to follow it, tbat it would hardly be consistent to bold tbat error resulted from so doing, 5. It is urged tbat tbe court erred in receiving testimony tending to show bow other servants of the defendant oiled tbe machine prior to tbe plaintiff’s employment, where they stood when oiling it, tbe condition of tbe light at tbe time of tbe injury, and tbe fact tbat tbe gearings were uncovered. It was competent for tbe plaintiff to show on tbe issue of contributory negligence any pertinent facts tending to establish ordinary care on bis part. Tbe fact tbat be oiled tbe machinery in tbe usual, customary, and ordinary way could best be established by showing bow others bad done tbe same work, and we think tbe testimony was not incompetent. Dr. Sarazin was permitted to testify under objection tbat, assnming the statement of tbe plaintiff to be true as to bis condition, be thought there was dead bone in tbe ribs, and tbat an operation to remove tbe same would be necessary, and tbat sucb removal would weaken tbe side. It is urged tbat tbe doctor bad made no sufficient examination and bad no sufficient information concerning tbe plaintiff’s condition to qualify him to give tbe testimony complained of. Tbe evidence was based on tbe. statement made by tbe plaintiff on tbe — 463 — witness stand as to Ms condition, and upon an examination made by tbe witness after the injury. Tbe evidence was competent, even tbougb it might not bave been convincing. Tbe weight to be accorded to it was for the jury to pass upon. 6. Tbe plaintiff produced a model on the trial which tbe court refused to receive in evidence because it was not correct. In bis argument to tbe jury plaintiff’s counsel stated in substance that tbe reason why defendant did not produce a model was that if one bad been produced it would bave been more unfavorable to it than that made by plaintiff. Exception was taken to such remarks. Tbe court charged tbe jury: ■“No inference adverse to tbe defendant should be drawn from tbe argument of plaintiff’s counsel, except in so far as that argument is based on testimony.” In view of this instruction and of tbe nature of tbe remarks and the probable cause •of their being made, no error resulted. 7. It is argued with much force that this court should say as a matter of law that tbe machinery in question was sufficiently fenced or guarded, and that therefore no negligence or breach of statutory duty was shown on tbe part of the defendant, and also that plaintiff was guilty of contributory negligence. These are tbe principal contentions relied on for a reversal of the judgment. Had tbe injury happened to some employee who bad no duty to perform about tbe machinery in question, the argument that plaintiff bad complied with its statutory duty to sufficiently fence or guard this machinery would be convincing. Tbe barrier was nearly three feet high and was substantial. But what might be a proper and sufficient safeguard for the ordinary employee might not be só for tbe plaintiff, who in tbe performance of bis duties was obliged to lean over the barrier and bring bis bands and other parts of bis body in close proximity to rapidly revolving gearings. Tbe plaintiff was as much entitled to bave these gearings securely guarded or fenced for bis safety as were other employees. Manifestly, a covering over tbe gearings in bis case — 464 — would, perform a function which, a mere fence or barrier would not. There was no attempt to show that it was impracticable to cover such gearings without seriously impairing* the efficiency and use of the machinery, and,we think the question of defendant’s failure to sufficiently fence or guard the gearings in question, under the facts of this case, was fairly one for the jury to pass upon. If we eliminate from the defense of contributory negligence-the fact that plaintiff continued in his employment a period of eleven months knowing its dangerous character, there is-nothing to be found in the evidence that would warrant a court in holding as a matter of law that plaintiff co-uld not recover because he was shown to be guilty of contributory negligence. Sec. 163Qjj, Stats. (Supp. 1906; Laws of 1905,. eh. 303), provides that the fact that an employee remains in an employment with knowledge that the employer has not sufficiently guarded or fenced dangerous machinery shall not operate as a defense to such an action as is here brought. This statute has eliminated assumption of hazard from the defense of contributory negligence in the class of cases to which it is applicable. Klotz v. Power & M. M. Co. 136 Wis. 107, 109, 116 N. W. 770; Lind v. Uniform, S. & P. Co., ante, p. 183, 120 N. W. 839. We perceive no error in submitting to the jury for consideration the question of negligence on the part of the defendant and want of ordinary care on the part of the plaintiff. 8. The plaintiff was forty-three years old at the time of his injury and was earning $2.75 per day. Such injury necessitated the amputation of his left arm close to the shoulder. His nose was broken and the injuries to his face have resulted in disfigurement. Three of his ribs were fractured and his side was badly lacerated and had not entirely healed at the time of the trial. There was some testimony given tending to show that the injury to the side is permanent, although such evidence is of an unsatisfactory character. — 465 — Tlie appellant urges tbat the damages awarded as compensation for the injuries detailed are excessive and should be re-, duced. In view of the deference that should be paid to the finding of a jury on this as well as on other questions of fact, and because the trial court who heard the testimony refused to say that the verdict was excessive} this court does not feel warranted in disturbing it. The writer does not concur in this conclusion, and thinks that the plaintiff should be required to remit a substantial sum from the judgment or to submit to a new trial. This view is concurred in by Justices MARSHALL and Dodge. By the Court. — Judgment affirmed.