Berlick v. Ashland Sulphite & Fiber Co.

93 Wis. 437 | Wis. | 1896

Pimranr, J.

1. The evidence is clear that the plaintiff had been accustomed to empty the digesters used in the defendant’s works, at least one or both per day, for a month before the accident, and that no injury had occurred to any one in consequence of the method practiced. Until the occasion in question no attempt had been made to empty either of them without first having filled in a great amount of cold water, so that it could drain through, cool, and compact the heated mass, in order that the digester could be emptied with safety. The plaintiff knew that this use of cold water was required as a part of the established course or method of proceeding. He could not but have known that the contents of the digester had been heated to an extremely high temperature, and of the consequent danger almost certain to attend any deviation from the established use of the cold water. The condition of the pulp, after the water is drained away so it becomes solid enough to stick in the digester, is soft and spongy, but it becomes packed so as to stay there. If sufficient time had been allowed for it tó cool and pack in the digester, the use of cold water, possibly, might not have been indispensable; but this would have involved very serious delay and an important departure from the invariable method. The evidence shows, beyond dispute, that the plaintiff was impatient of delay, and wanted to omit the use of the cold water because he could empty the digester the sooner without it. Reisner heard him tell the cook so that night, and Ducette was requested by him. not to put any water in, and he told him he would have to see the cook about it. About a week before he had expressed the wish that the cook would not put any water in the digester, and two or three days before he requested the witness Dumas, who was going upstairs, to tell the cook not to put any cold water in the digester, and he said he had been telling him so a good many times, and that he did not listen to him. Longren, the cook, testified that the plaintiff told him, on the night in question, that he did not want any cold water put in the digester, and witness after-wards told him he had not put in any, and he answered that he wanted no cold water in. He testified that no cold water had been put in on the night in question. That none was put in is beyond dispute. The plaintiff had, on other occasions, assisted in putting in the water. He denied saying anything to the cook about not putting in water that night, or at any other time, and denied having any conversation with Dumas about it, or with Ducette, and testified that he did not know whether any had been put in that night or not.

It needs no argument to show that the omission to put cold water into and through the digester was gross negligence. It was, beyond dispute, the cause of the accident. There is not a particle of evidence to show that there was any other cause. The highly-heated mass in the digester had not been cooled, drained, and compacted so that the digester could be emptied with safety. This was the fault of the plaintiff or of the cook. The evidence is very clear and strong to show, notwithstanding his denial, that it was the fault of the plaintiff. If this was so, and the failure to put in cold water was the proximate cause of the acoident, then, certainly, he could not recover; but if the cook, whose duty it was to put it in, was guilty of negligence in not doing so, then, as they were fellow-servants and co-employees of the defendant in a common employment, the negligence of the cook must be allowed, in law, the same effect as the negligence of the plaintiff, and for that reason he cannot recover. The trial court submitted the case to the jury on account of the plaintiff’s evidence, and that they might, perhaps, find a verdict upon it, as they did. But the finding is so clearly against the great weight of evidence on the question of the plaintiff’s fault as to render it quite clear that the verdict is against the merits and ought, in the exercise of sound discretion, to have been set aside by the trial court. In such a case, if there is any evidence at all to support the verdict, this court cannot interfere; and if the trial court practically abdicates the discretion vested in it upon such matters to see that justice does not miscarry, and the verdict is clearly wrong and against the decided weight of evidence, this works a denial of justice; for, as we have frequently held in such cases, this court can grant no relief. In the aspect of the case, however, that the jury chose to believe the plaintiff as against the four witnesses and the circumstances ten ding, to corroborate them, the verdict cannot stand, because it is beyond dispute that the failure to put cold water in the digester was the proximate cause of the accident, and was, in this view of the case, the negligent omission of the plaintiff’s co-employee and fellow-servant, Longren, the cook, and necessarily defeats any recovery by the plaintiff. For this reason, the verdict cannot .stand.

2. In view of the condition of the evidence upon the question whether the failure to put cold water in the digester on the night of the accident wa^ the personal fault of the plaintiff, the ruling of the court in admitting in evidence the plaintiff’s testimony as to the conversation between him and ‘W'ildhagen, the defendant’s superintendent, and Q-reulioh, its secretary, at the office of the company, some three months after the accident, and in refusing to strike it out after it had been given, was manifest error, prejudicial to the defendant. The evidence had not the least relevancy to any question in the case. It was utterly immaterial in all its parts. It could serve no other purpose but to excite prejudice and passion on the part of the jury against the defendant. This was its almost certain result. To allow such evidence in a court of justice to affect the rights of parties litigant is in plain violation of the rules of evidence, and tends directly to render the verdict the product of prejudice, passion, or resentment, instead of the calm, conscientious deliberations of an impartial jury; and its' admission was clearly prejudicial to the rights of the defendant.

For these reasons there must be a new trial.

By the Court. — The judgment of the circuit court is reversed, and the cause is remanded for a new trial.