Kruck v. Wilbur Lumber Co.

Vinje, J. The jury found that the belt which ran the inside head of the machine plaintiff operated was so located as to be dangerous to employees in the discharge of their duties. The evidence is conclusive and undisputed that the belt which ran the bottom, head was meant; and it is evident the jury were not misled by the use of the word inside instead of the word bottom. The testimony was all directed to the one belt, hence the mistake in describing it became immaterial. This belt was so located that when plaintiff attempted to adjust the inside head with the wrench it came within two or three inches of his sleeve, and there is evidence to show that it had a wobbly or up-and-down motion which may have brought it even nearer. A rapidly revolving belt so located with reference to where employees are called upon to discharge their duties certainly presents a jury question as to whether or not it comes within the provisions of sec. 163 6/, Stats. (1898), and is required to be securely guarded. The finding of the jury that it did, rests upon sufficient evidence to sustain it. The trial court evidently treated the knives of the head of the machine as coming within the provisions of the statute, if they were so located as to be dangerous to employees in the discharge of their duties. This was error. They are neither shafting nor gearing within the meaning of the statute, and are not required by it to be guarded. Schmitt v. Seefeld, 139 Wis. 459, 121 N. W. 136. Whether or not the knives were so located, irrespective of the statutory requirements, as to charge the master with the duty of guarding them because they were dangerous to employees in the discharge of their duties, was a question for the jury. Since they were not required by the statute to be [81] guarded, it became a question for tbe jury, even though, they should have been guarded, to find whether or not plaintiff assumed the risk of their unguarded condition. The defendant asked to have the question of the assumption by plaintiff of the risk resulting from the unguarded condition of the knives submitted to the jury, but the court refused the request. It could not, therefore, be deemed to have found such issue in favor of plaintiff under the-provisions of sec. 2858m, Stats. (Laws of 1907, ch. 346), by ordering judgment in his favor. The result is, we have finding 1- by the jury establishing actionable negligence on the part of the defendant, and finding 3 establishing nonactionable negligence on its part — there being no finding that plaintiff did not assume the risk. The only question relating to proximate cause is the sixth one, which reads: Was defendant guilty of a want of ordinary care which'was the proximate cause of plaintiff’s injury ? The trial court construed the jury’s answer to this question as finding the negligence set qut in questions 1 and 3 to be the proximate cause of the injury. Such construction, we think, is the only reasonable one that can be given this verdict. If this construction be given it, the jury found actionable negligence and nonactionable negligence on the part of the defendant to be the proximate cause of plaintiff’s injury. Such a finding does not sustain a judgment in his behalf. Peck v. Baraboo, 141 Wis. 48, 122 N. W. 740. It was suggested by counsel for plaintiff upon oral argument that an additional ground of negligence, namely, a failure to warn plaintiff of the danger of the uncovered knives, was found in the sixth question. We are unable to reach that conclusion. The instructions on the question relate solely to the abstract definition of burden of proof, ordinary care, and proximate cause. They do not even remotely suggest any new or additional ground of negligence, and, as before stated, the trial court did not understand that any additional ground of negligence was found in answer to the question. [82] Moreover, the evidence would not sustain a finding that defendant was negligent in failing to warn plaintiff of the danger of the revolving uncovered knives. So we have a case where it appears upon the face of the verdict that the proximate cause of the injury is found to be both actionable and nonactionable negligence on the part of the defendant. This lacks an affirmative finding that defendant’s actionable negligence was the proximate cause of plaintiff’s injury — an essential element in every special verdict in a negligence case. We cannot eliminate from proximate causation the nonac-tionable any more than we can the actionable negligence. All we can say is that the verdict lacks a specific finding that the defendant’s actionable negligence was the proximate cause of the injury complained of, and that, as stated in Peck v. Baraboo, supra, is a fatal defect. Indeed, this verdict does not in terms declare that the negligences found in answer to questions 1 and 3 constitute the proximate cause of the injury to plaintiff. Trial courts in submitting special verdicts should be careful to so frame the question relating to proximate cause that any responsive answer thereto will disclose what actionable negligence on the part of defendant does, or does not, constitute the proximate cause.of plaintiff’s injury. It is urged by defendant that plaintiff was guilty of contributory negligence as a matter of law in attempting to adjust the head while it and the belts were in motion. There is evidence that he was instructed by the superintendent or foreman to do so, and that other employees customarily did it with the parts in motion. In view of such evidence and of plaintiff’s age and experience, as shown by the testimony, we think the question of his contributory negligence was for the jury, and that their finding upon it should not be disturbed. The verdict absolving plaintiff from contributory negligence cannot be construed as a finding that he did not assume the risk resulting from the unguarded revolving knives. Especially is this so in view of the fact that the instructions [83] given under that question related only to the burden of proof and the definition of ordinary care. Not a word was said about the assumption of any risk whatever. The statute (sec. 1636/) also clearly distinguishes between contributory negligence and the assumption of risk in cases of this kind by-permitting the one to constitute a defense and the other not,, where it applies. Plaintiff was a minor, about eighteen years of age. There ivas no evidence in the case to show an emancipation, and yet the trial court instructed the jury that they might allow for diminished earning capacity from the time of the injury instead of from the time of his majority. It is true that in the ease of Sharon v. Winnebago F. Mfg. Co. 141 Wis. 185, 124 N. W. 299, the court held a charge substantially similar not prejudicial error in that case. As there must be a reversal here on other grounds, it is not necessary to decide whether or not the instruction alone constituted ground therefor. Attention, however, is called to the error so that it may not recur if the case be tried again. It appears from defendant’s brief, not contradicted by plaintiff, that an action is now pending between the father of the plaintiff and the defendant to recover for loss of his son’s services during minority. Manifestly the defendant should not be compelled to pay both the father and the son for the diminished earning capacity of the latter during minority. By the Court. — Judgment reversed, and cause remanded for a new trial.