Kolasinski v. Chicago, Milwaukee & St. Paul Railway Co.

KeewiN, J. 1. It is established by the verdict that the plaintiff’s husband was injured while in the employ of the •defendant in interstate commerce; that the death of plaintiff’s husband resulted in part by reason of the injuries .sustained while in the employ of the defendant; that the defendant was not negligent in failing to provide plaintiff’s husband with a reasonably safe place to perform his work, considering the nature of the work in hand; that there was a defect in the handle of the maul; that the defect in said handle was not one observable by the exercise of ordinary care; that the defendant was not negligent in permitting the 'use of said maul at the time deceased was injured; that the injuries sustained by deceased did not result in whole or in part from the negligence of any employee of the defendant [52] in using said maul; and that the deceased was not guilty of any want of ordinary care which proximately contributed to his injury. The foregoing findings are well supported by the evidence. 2. Error is assigned on the following instruction: “In reference to your answer to the ninth question, I charge you that the hammer handle in question which broke is what in law is termed a ‘simple tool’ and that the defendant was not bound, in the exercise of ordinary care, to inspect or test said handle.” There was no error in giving this instruction. The undisputed evidence shows that the hammer or maul was a simple tool, therefore there was no dtity upon the part of defendant to inspect. Badger v. Janesville C. Mills, 95 Wis. 599, 70 N. W. 687; Stork v. Charles Stolper C. Co. 127 Wis. 318, 106 N. W. 841; Meyer v. Ladewig, 130 Wis. 566, 110 N. W. 419; Lehman v. C., St. P., M. & O. R. Co. 140 Wis. 497, 122 N. W. 1059. Moreover, the jury found upon sufiicient evidence that the defect in the handle of said maul was not observable by the exercise of ordinary care. Counsel for appellant also invokes the safe-place doctrine under the state statute, but since the case is one falling under • the federal act the state statute is not applicable. Error is also assigned on the submission of questions 2, 3,. and 4 of the special verdict. Questions 2 and 3 do not relate to negligence of the defendant, but to the question of damages, and since no actionable negligence was shown they are immaterial. Question 4, which inquired whether the death of the plaintiff’s husband resulted in whole or in part by reason of the injuries, was also immaterial. Error is assigned on the instruction relating to the burden of proof on the question whether the injuries were the proximate cause of deceased contracting diphtheria. Since the answer to this question was immaterial the instruction was. not prejudicial. [53] Some other errors are assigned which are wholly unnecessary to consider and immaterial in view of the fact that no negligence was shown on the part of the defendant. By the Court. — The judgment is affirmed.