Krawiecki v. Kieckhefer Box Co.

Siebecker, J. Tbe claim tbat tbe witness Wikkerink was improperly permitted to testify as to guarding tbe belt because not qualified to speak on tbe subject is not sustained. [180] The evidence discloses that he had had experience with machinery of the kind in question, that he is familiar with present conditions and practices in factories in Milwaukee, and that he has knowledge on the subject. The court excluded the following inquiry, propounded by the defendant to its foreman as a witness: “Did any factory inspector or other official at any time before this accident suggest to you that this planer, as to its belts that I am referring to, ought to be guarded or covered ?” There is no showing that the method of operating this'planer and belting came to the notice of any inspector or that any inspector was advised of these conditions and the situation. Under such circumstances an answer to the propounded inquiry was properly excluded. The materiality of the question and the evidentiary force of an answer thereto must rest on the fact that the circumstances and the condition of the situation of this planer and the belts referred to were known to the inspectors and that they acted on such knowledge in not suggesting that the belting should be guarded. It is contended that the evidence is without dispute that there is no custom in wood-working establishments of placing guards around belts like the one in question, and that the court erred in denying defendant’s motion to direct a verdict in its favor upon that ground. An examination of the evidence discloses, however, that the witness offered by the plaintiff on this subject testified that such guards are in use on rapid-running planers and that they are practical. Nor is the evidence on the subject adduced by the defendant so clear and convincing in itself that it can be held as matter of law to establish such a custom as defendant asserts. Taking all the evidence, it clearly does not justify the claim that the court should have held as matter of law that there is no custom in wood-working factories of guarding belts under the conditions and circumstances that existed here. Such evidence, however, was properly received as bearing on negligence. As de181 dared in Boyce v. Wilbur L. Co. 119 Wis. 642, 97 N. W. 568: “As a general rule, evidence to show tbe usual or ordinary methods of others in the same business is admissible upon the question of negligence” (headnote), but not if such evidence contradicts common knowledge or if it shows a method so obviously dangerous as to be recognized as such by all intelligent persons. The court, after instructing the jury that the evidence as to custom did not justify him in holding as matter of law that the defendant was absolved from the duty of guarding the belt, instructed them to consider all such evidence in connection with the other evidence in deciding whether the defendant’s officers and agents had exercised ordinary care in determining whether or not such belting ought, under the circumstances and conditions, to have been guarded. This was a proper submission of this issue and the evidence to the jury. A further contention is made that the court erred in refusing to hold that the plaintiff, under the evidence in the case, was guilty of contributory negligence. This claim is based on the ground that the plaintiff did not stand in the usual and proper place while feeding the planer, and that he so placed the truck loaded with lumber as to make it dangerous to get the lumber from the truck and feed it into the planer. It is argued that the plaintiff’s carelessness in placing the loaded truck at the side of the planer and in then reaching oyer the running belt exposed him to the danger complained of, and that he should have placed the truck behind him near the place which he ought to have occupied to perform his duty of feeding the lumber into the planer. Plaintiff testified that the loaded truck stood in the proper and customary place; that there was not sufficient room in the doorway to the south and back of him while he was feeding the planer; and that it was the common practice to place the loaded truck where it stood at the time of the accident, because it was the proper and most convenient place from which to handle the long [182] lumber. In these matters the plaintiff is corroborated by some of the witnesses and contradicted by others. Under such circumstances the question of his contributory negligence was one to be resolved by the jury. An exception is urged to the court’s refusal to incorporate in the special verdict certain questions which appellant requested. The verdict submitted covered the issues raised by the pleadings and the evidence and is in proper form. The rejected questions embraced findings of facts which were necessarily included in the verdict rendered under the direction of the court and pursuant to the instructions given the jury. We are satisfied that in the verdict rendered the jury have found every essential fact involved, and hence that no prejudicial error was committed by not incorporating the special questions requested in the verdict. Milwaukee T. Co. v. Milwaukee, post, p. 224, 138 N. W. 707, and cases cited. The court’s instructions to the jury as to the law applicable to the issues covered by the verdict are correct and sufficiently cover the case. In our opinion appellant was not prejudiced by the court’s omission to give any of the specific instructions requested. Other alleged detail errors are not of sufficient importance to be specifically noted. "We do not find that any of them were prejudicial to the appellant, aside from the subject of damages, which will now be considered. Appellant objected to the introduction of evidence on the alleged element of damages as to plaintiff’s loss of sexual power, and requested the court to exclude this alleged element of injury from consideration by the jury. The court, however, informed the jury that they might include as an element, for which plaintiff could recover damages, “the loss and impairment of his sexual powers, if any such loss or impairment existed or exists, and if so, if it was a proximate result of such injury,” and such impairment as should be found to continue in the future. The evidence on the subject is [183] very meager and uncertain, and speculative to a bigb degree, and amounts to no more than mere opinion. Tbe facts on tbis branch of tbe case are not satisfactory and come witbin the views expressed by this court in Bucher v. Wis. Cent. R. Co. 139 Wis. 597, 120 N. W. 518: “Tbe verdict of a jury founded upon facts is entitled to great weight, and is almost conclusive upon this court if supported by any evidence. But tbe verdict of a jury founded only upon tbe opinion of experts concerning the cause of a condition, which condition is itself established by tbe opinion of experts, has no such weight” (citing). Tbe considerations advanced in that case for tbe rejection of tbe loss of sexual potency as an element of damages apply with all their force to tbe evidence before us in tbis case. We are led to tbe conclusion that tbe court erred in submitting this phase of tbe case to tbe jury as a basis for tbe allowance of compensatory damages, and that the judgment rendered is therefore erroneous and must be reversed. We have, however, examined tbe evidence in tbe case and are persuaded that we should follow tbe practice adopted in the cases of Baxter v. C. & N. W. R. Co. 104 Wis. 307, 80 N. W. 644, and Heimlich v. Tabor, 123 Wis. 565, 102 N. W. 10, and permit tbe plaintiff to avoid a new trial upon reversal of tbe judgment entered.by electing to remit from tbe amount of damages assessed by tbe jury a sum which will reduce the award of damages to as low an amount as an impartial jury on tbe evidence would prubably name. In our judgment that sum is $1,000. By the Court. — Judgment reversed, and action remanded for a new trial, unless tbe plaintiff elect, witbin thirty days after tbe filing of tbe remittitur in the trial court, by notice in writing served on the defendant’s attorney, to take judgment for $1,000 with costs, in which case judgment shall be rendered therefor upon motion in that court.