Ludvigson v. Superior Ship Building Co.

Vinje, J. Error is assigned because the court refused to .submit two questions in the special verdict requested by the ■defendant. No exception to such refusal was taken until after verdict and before judgment. The exception came too late. It must he taken at the time of the trial in order to be considered upon appeal. Ward v. Busack, 46 Wis. 407, 1 N. W. 107; Schultz v. C., M. & St. P. R. Co. 48 Wis. 375, 4 N. W. 399. Sec. 2831, Stats. (1898), has no application to the omission to take a timely exception to the ruling of the court during trial, and the ease of Henrizi v. Kehr, 90 Wis. [37] 344, 63 N. W. 285, permitting an exception to a finding of fact to be made after tbe statutory time bad expired, and tbe case of Dickinson v. Smith, 139 Wis. 1, 120 N. W. 406, allowing a defective undertaking to be amended after tbe expiration of a year, cited by defendant, do not relate to tbe question, as tbe relief in each case was granted pursuant to sec. 2831, Stats. (1898). Upon tbe question, “Was plaintiff guilty of lack of ordinary care tbat contributed as proximate cause to produce tbe injury ?” the court instructed tbe jury as follows: “Ordinary care in a given case is such care as tbe great mass of mankind ordinarily exercise under tbe same or similar circumstances. In passing judgment upon plaintiff tbe jury is instructed tbat be stands, or falls according as bis conduct was careful or careless viewed in tbe light tbat be bad. If be then knew tbat tbe signalman was incompetent and nondependable, it was upon him to govern himself accordingly. Does bis conduct considering all tbe circumstances of tbe case, the knowledge or want of knowledge he bad, accord to ordinary care? Here tbe burden is upon defendant to prove tbe affirmative of said question 6 by preponderance of evidence and to reasonable certainty. I be jury is instructed tbat if plaintiff fell short in however slight degree to exercise ordinary care as defined, tbe question should be answered in tbe affirmative, otherwise in tbe negative.” Tt is claimed this instruction was erroneous because it confined plaintiff’s contributory negligence to what be then knew, and did not include what be ought to have known by tbe exercise of ordinary care. The only instruction requested by tbe defendant upon the question of contributory negligence was, “You are instructed tbat if tbe plaintiff failed to exercise ordinary care, however slight tbat failure may be, which contributed to bis injury, then you must answer this question Yes.” This requested instruction tbe court gave in substance. Undoubtedly the correct instruction would have been: If tbe plaintiff then knew, or by the exercise of ordi [38] nary care ought to have known, that the signalman was incompetent, etc. Bnt, under the circumstances of this case, we deem the error in the instruction as given not to be so prejudicial as to necessitate a reversal of the case. The qualifying phrase, “or by the exercise of ordinary care ought to have known,” would have had hut slight, if any, application to the facts to he considered by the jury. Plaintiff was engaged in a simple employment/that of moving earth, and it is probable that in the ordinary prosecution of that work he would either have known of the signalman’s incompetency or would not have known of it, depending largely upon his opportunity or necessity for observance. This fact the jury were required to take into consideration. Upon the oral argument it was claimed by defendant that the signalman was so notoriously incompetent that the plaintiff must have known of his incompetency and assumed the risk incident thereto. Such claim is based upon the fact that plaintiff produced seven or eight witnesses who testified that the signalman was careless, that he did not always give signals when the skip was lowered, and that he would omit to give signals three or four times a day, or more. It is certain that at the time of the trial the defendant did not accept such testimony as true, for it introduced at least five witnesses who testified that the signalman was a careful, competent man not cnly while in the employ of the defendant, hut for the period of two years previously while he had been employed by others in Superior and Duluth discharging similar duties. In view of such conflict in the testimony it can hardly he said that there was no question of fact for the jury to determine as to whether or not the signalman was competent. Nor is their finding that he was incompetent, and that the plaintiff did not know of such incompetency, unsupported by the evidence, when it is borne in mind that plaintiff had been in the employ of the defendant for only three weeks before he was hurt, and that most of the time he had been at work in a place where [39] he was not required to pay any attention to the signalman. The whole time he had worked where it was necessary to heed the signals was only abont three days. So the most that can be said is that there was room for conflicting inferences as to plaintiff’s contributory negligence. Under such circumstances it was peculiarly a question for the jury, and their finding in favor of plaintiff cannot be disturbed. Is the assessment of $5,000 damages excessive? At the tíme of the injury plaintiff was fifty-eight years old and earning $1.75 per day. His left leg was fractured in two places between the knee and hip, resulting in a permanent shortening of the leg of two inches. The bones in the instep of his right foot were fractured, and the arch of the foot was destroyed, so that the foot was flattened, and it drags when he walks. The front part of it is beyond control, and the injury is a permanent one, and is always accompanied with considerable pain. He was in the hospital five months, continuously, after the injury, eight weeks of which he was confined to bed. The pain was continuous and severe during all that time. In view of such an injury, we cannot say the damages assessed were so excessive as to warrant this court in reducing them, though we should have been better satisfied with the assessment of a smaller sum. By the Court. — Judgment affirmed.