Tosty v. Morgan Co.

Winslow, C. J. It is contended that a verdict for tbe defendant should have been directed both because there was no evidence of negligence on its part, and because the evidence conclusively shows assumption of risk on the part of the plaintiff. Both of these contentions are overruled without comment, except to say that we consider that both questions 'were properly for the jury. One of the most serious difficulties in the case arises from the form of the third question. By their answers to the first two questions the jury find the defendant negligent (1) in the use of an unsafe machine, and (2) in the failure to warn the .plaintiff of his danger, and by the answer to the third question they find that one or the other of these negligent acts was the proximate cause of the plaintiffs injury. By a long series of decisions it has been held in this court that a disjunctive finding like this cannot be considered as a finding of either fact in cases where there was evidence from which the jury might affirm one and negative the other and it cannot be said from an examination of the record that the entire jury affirmed either of the two propositions. Spille v. Wis. B. & I. Co. 105 Wis. 340, 81 N. W. 397; Lowe v. Ring, 123 Wis. 370, 101 N. W. 698; Du Cate v. Brighton, 133 Wis. 628, 114 N. W. 103. In the present case there was sufficient evidence from ivhich the jury might have affirmed either of the propositions involved and negatived the other. It was not a case like Berger v. Abel & B. Co. 141 Wis. 321, 124 N. W. 410, where there was no evidence in support of one of the alternative propositions, and it was held that the jury as sensible men must have considered and answered only that branch of the question upon which there was evidence, and hence there was no prejudicial error. _ The defendant asked that a question be incorporated in the special verdict asking the jury whether the defendant ought to have known that the plaintiff needed a warning as to the [605] danger of using tbe saw for ripping veneers. The request was refused and the defendant assigns error on this ruling. We find no error here. The proposition is fully covered by the second question. The defendant could not be guilty of actionable negligence in failing to warn unless it knew or ought; to-have known that the plaintiff needed the warning. The defendant requested in various forms that a separate question covering assumption of risk be submitted to the jury, but no such question was submitted, and the subject is not covered by the verdict unless it be held to be covered by the sixth ruling which acquits the plaintiff of contributory negligence. It is quite well established in this court (though perhaps not with the most exact logic) that assumption of risk is a form of contributory negligence; that if there be no request to submit the issue by a separate question it will be covered by the general question as to the presence of contributory negligence; that if there be evidence to support a finding of assumption of risk as distinguished from active contributory negligence and a request to submit a separate question on the subject be made, such question should be submitted, or that in submitting the general question of contributory negligence a specific charge should be given to the jury covering the subject and clearly informing them of the nature of this form of contributory negligence, so that the jury will understand that both forms of negligence are included in such general question. See Campshure v. Standard Mfg. Co. 131 Wis. 155, 118 N. W. 633, where the authorities on the subject are collated. In the present case we think there was evidence from which the jury might have found assumption of risk and negatived active contributory negligence, and vice versa. The defendant’s request to submit the issue of assumption of risk by a separate question should therefore have been granted, unless the court chose to cover the subject by a sufficient instruction in connection with the general question of contributory negli606 genee. It seems very doubtful whether this was done. The court charged the jury in connection with question-6 as follows: “This question requires you to answer whether the plaintiff himself was guilty of a want of ordinary care and prudence which contributed to his injuries. It is contended on the part of the defendant he was so guilty, and if it had not been for his carelessness his fingers could not have gotten in on that saw; on the other hand it is contended that he was not guilty of a want of ordinary care and prudence, but was exercising ordinary care and prudence at the time. That is a question for you to determine from all the evidence and answer the question either Yes or No.” It seems quite plain that this, instruction only relates to active contributory negligence. In a later portion of the charge he returned to this question in the following words: “In considering this question I am asked by the plaintiff to instruct that an employee does not assume a risk of which he has no knowledge, experience or ability to ascertain, and if you should find from the evidence that the plaintiff had no knowledge, experience or ability sufficient to ascertain the danger which caused the loss of his fingers while running this thin gum-wood through the edger as it was then equipped, then you should consider that in answering question number 6.” This instruction refers to assumption of risk and gives the jury some negative instructions with regard to it, but can hardly be said to inform the jury of the fact that two forms of contributory negligence are included in the question with that fulness that ought to mark the instruction when the specific request for a separate question has been made and denied. It is unnecessary now to say whether we should reverse the judgment on this latter ground alone. It is sufficient to say that upon another trial the question of assumption of risk should (if either party request) be submitted to the jury, [607] either by separate question or by appropriate instruction under tbe general question as to contributory negligence. No other errors are assigned which seem to us substantial. By the Court. — Judgment reversed, and action remanded for a new trial.