Sobek v. George H. Smith Steel Casting Co.

BaRWES, J. It was the duty of the defendant to furnish its employee with as safe a place to work in as the nature of the employment would reasonably permit. Sec. 2394 — 41, sub. 11, and sec. 2394 — 48, Stats. It was admitted by defendant that the emery wheel might have been guarded and that it was not. It was not admitted that it could be guarded so as to avoid the injury which plaintiff sustained. One witness, however, testified that it could be so guarded, and we find little evidence to the contrary. The defendant’s foreman appears to have testified both ways on the subject. Leaving out of consideration assumption of hazard, which was abolished by sec. 2394 — 1, Stats. 1911, wo find no evidence to show contributory negligence on the part of the plaintiff. Most of the alleged errors in the charge related to negligence and contributory negligence. The charge in the main is correct. Some parts of it are not strictly accurate state [521] ments of the law, hut in view of the state of the evidence nothing erroneous is said which by even a remote possibility could have affected the result. There was no prejudicial error in refusing to charge the jury that plaintiff was not entitled to recover compensation on account of injuries which he did not sustain. We cannot assume that the jury awarded damages on any such account. The court charged the jury quite fully on the question of burden of proof, and no prejudice resulted from failure to give the instructions requested on this subject. The plaintiff sustained a severe injury. There is evidence tending to show that the muscles of the eye are paralyzed and that the power of vision is decreased seventy-five per cent. The civil and circuit courts have approved the verdict, and this court cannot say that it is so clearly excessive as to warrant interference with it. The claim that the court erred in one of its rulings on evidence is frivolous. By the Gourt. — Judgment affirmed.