Berger v. Abel & Bach Co., 141 Wis. 321

141 Wis. 321 | Wis. | 1910

Whtslow, O. J.

Yery many errors are assigned, but only those deemed material will be discussed, and some of them •only in a general way.

The plaintiff’s complaint charged that the embossing machine was defective, and much expert evidence was introduced tending to show that there were appliances which could be ■attached to such a machine which would prevent the oscillation ■of the cam when the power was thrown off before the cam had fully descended. At the close of the plaintiff’s case, however, the trial court held that there was really no defect in the machine ; that it was constructed as was intended; that the only •ground for a claim of negligence was in the failure to instruct concerning the proper time to throw the power off; and struck •out all of the expert testimony concerning the possibility of the-attachment of appliances to prevent oscillation of the cam. There was no error in permitting the plaintiff in good faith to attempt to prove that this condition of the machine constituted a defect, and there was certainly no error in striking out the testimony which had been introduced in this attempt and instructing the jury that it was to be disregarded. In fact this was done at the defendant’s request.

It was proven absolutely without dispute that the machine in question was a machine liable to make a dangerous motion when the lever was thrown just as the plate was about to descend. If the lever was thrown as the cam reached the bottom of its course there was no danger, and the hand might freely be inserted (as it bad to be) to remove the stamped, leather; but if the lever was thrown a second or two earlier, the ram plate would reascend with great force almost or quite to the die. It is also undisputed that the mechanism of the cam and ram plate is not visible from the front of the machine where plaintiff stood; that the plaintiff was inexperienced with such machines, and that he told the defendant’s superintendent so before he was set at work; that while he was shown how to operate the machine by practical illustration by another operative, he was never told in words when was the proper time to pull the lever, nor what the result would be if it was pulled at the wrong time, but left to gather these facts from watching the operation. In addition to these palpably undisputed facts the court-below held, after the close of the plaintiff’s case, that the accident could have happened in no way except by the plaintiff’s prematurely throwing the lever, and our consideration of the evidence leads us to the same result.

So we start with these facts: The plaintiff was inexperienced and defendant knew it; he was set at work before a machine in whose operation there was.a secret danger of which defendant knew; he did not have actual knowledge of this danger nor was he told of it, but was required to watch the correct operation of the machine by another, and his hand was in fact caught and crushed by reason of this secret danger while he was engaged in a perfectly proper act. Really the only questions left were whether his instruction was sufficient so that he knew or ought to have known of the secret danger when he prematurely threw off the power, and, if not, whether the defendant ought- to have known that he was unacquainted with the secret danger; and finally, whether the failure to instruct was the proximate cause of the accident.

The first of these questions was answered in the negative by the juyv. They found that he neither knew nor ought to have-known of the danger resulting from premature throwing off of the power. True, the question wras double, and if answered in the affirmative might be subject to criticism; but being answered in the negative, every juryman must have found, both that he did not know and that he ought not to have known, before it could be so answered. This covered the whole question of contributory negligence. It was the plaintiffs duty to put his hand under the die and remove the leather after the ram plate had descended. Consequently his hand was there in the course of his duty, and under no circumstances would it have been hurt except for the secret danger, so he could only be negligent' because he put his hand there when he either knew, or ought in the exercise of ordinary care to have known, of the danger. Both these facts bemg negatived, no ground of contributory negligence is left.

The jury also found that the omission to instruct was the proximate cause of the injury, and thus the only material question left (other than the ainount of damages) was whether the defendant ought to have known that plaintiff was ignorant of the secret dangef and the enhanced hazard resulting therefrom. The question, as put to the jury, was, “Did the defendant know, or ought it in the exercise of ordinary care to have known,” etc., and was answered “Yes.” The form of the question is erroneous under thq rule laid down in a number of cases. Lowe v Ring, 123 Wis. 370, 101 N. W. 698; Du Cate v. Brighton, 133 Wis. 628, 114 N. W. 103; Odegard v. North Wis. L. Co. 130 Wis. 659, 110 N. W. 809. While this is true, it does not necessarily follow-that the judgment must be reversed. It must affirmatively appear, after an examination of the entire record, that the error has affected the substantial rights of the party complaining before there can be a reversal. Sec. 3072??i, Stats. (Laws of 1909, ch. 192). Does it so appear ? We think not. There was absolutely no testimony in the case showing that defendant had positive knowledge of plaintiff’s ignorance of the danger. The only question was whether the defendant ought to have known of such ignorance from the facts before it. The jury, as sensible men, must have considered simply this latter question, which was the only question upon which there was any evidence. It was not a case like Du Cate v. Brighton, where there was evidence from which the jury might have found either fact. There being’ only one branch of the question upon which there was any evidence or claim of evidence to justify an affirmative answer, we are inclined to hold that it does not affirmatively appear that the form of the question has in any way affected the defendant’s substantial right.

We reach this conclusion more readily because the jury had already found, in answer to the next preceding question, that the facts were not sufficient to charge the plaintiff, in the exercise of ordinary care, with knowledge of the danger resulting from premature'throwing of the lever. Row the defendant knew what the facts were, and if they were not sufficient to charge the plaintiff with knowledge, it seems that the defendant ought to be charged with knowledge of that insufficiency, and the more so as the defendant had actual knowledge that the plaintiff had never worked on such a machine.

A large number of questions were proposed by the defendant as proper to be inserted in the special verdict, but they wére refused, and exception has been taken to each refusal; but, as the special verdict submitted by the court covered the issues as fully as necessary, there is no error in such refusals. We have found no errors either in the charge or in the refusals to charge. The case seems to have been impartially tried and fairly submitted to the jury, and the error in the form of the question before noted is not thought to have impaired any substantial right under the circumstances here present.

The plaintiff before action served a written notice of injury on the defendant, under subd. 5, sec. 4222, Stats. (1898), in which he fixed his damages at $5,000. As the action was commenced and the complaint served within one year after the injury the plaintiff did not introduce the notice in evidence. The defendant, however, offered it in evidence and it was ruled out as immaterial and irrelevant. There is but one ■question upon which the notice ’can he considered material, and that is the question as to the amount of damages. He sued for $7,200 damages. The? no'tice shows that just about one month earlier he had fixed his 'damages at $5,000. This was in the nature of an admission quite deliberately made, and admissible on the question of the amount of his damages, and the opinion of the court (in which the writer does not share) is that the amount of damages allowed by the jury is excessive, and that the judgment should he modified so as to place the damages at the amount fixed by plaintiff himself in his notice.

By the Oourt. — Judgment modified by reducing the same as of its date to $5,000, and as so modified affirmed; appellant to recover costs in this court.