Christianson v. Pioneer Furniture Co.

92 Wis. 649 | Wis. | 1896

WiNsnow, J:

We were strongly urged to reverse this judgment on the ground that a verdict for the defendant should have been directed either on the ground that no negligence was shown on the part of the defendant, or on the ground that contributory negligence was conclusively shown; but we decline to do so. There was, in our judgment, sufficient evidence to carry the case to the jury on both of these propositions.

This judgment must, however, be reversed on account of the rejection of competent evidence offered by the defendant. The facts were these: One Jackson was offered as a witness for defendant. He was an employee of the defendant at the time of the accident, and worked at a tenoning machine in the same room with the deceased, and about fifty feet from tbe ripsaw in question. It bad appeared by tbe testimony of tbe boy wbo helped tbe deceased that, as •soon as tbe board struck tbe deceased, be threw tbe belt from tbe machine, said that struck him pretty bard, walked at an ordinary gait to tbe water pail, about fifty feet distant, took a drink, and then walked out of tbe outside door, :and entered a closet, about eight or ten feet distant from tbe door and adjoining tbe shop building. Jackson testified that be saw tbe deceased go out of tbe door; that a boy ■came in right after deceased went out, and came past Jackson, and be asked tbe boy what was tbe matter, and tbe boy . said, “ Pete is hurt.” Thereupon Jackson went right out to tbe closet, and found tbe deceased sitting, resting bis face ■on bis bands, pale, and apparently in pain. Jackson further •testified that be at once bad a conversation with him as to bow tbe accident happened, and that tbe deceased stated in •substance bow it occurred. When asked to state tbe conversation, an objection to tbe testimony was sustained by tbe court. We think this ruling was erroneous. Tbe conversation sought to be elicited was held with tbe main actor in tbe accident, a very few minutes after tbe fatal stroke, ipractically on tbe scene of tbe accident, and is so clearly and closely connected with tbe main fact as to impress the mind with tbe idea that it sprang spontaneously from it without design or premeditation. Within tbe decisions of ■this court in tbe cases of Hooker v. C., M. & St. P. R. Co. 76 Wis. 542; Hermes v. C. & N. W. R. Co. 80 Wis. 590, and Reed v. Madison, 85 Wis. 667, — :this verbal act was a part •of tbe res gestee.

Upon tbe subject of contributory negligence tbe court .•gave tbe following instruction to tbe jury: “If you find from tbe evidence that be was negligent and careless, and that his negligence and carelessness was tbe direct cause of the injury that occurred, then, even though this machinery was defective, tbe plaintiff is not entitled, to recover, if he Jknew of the defeats” This instruction is certainly erroneous. Under it the negligence of the deceased would only-defeat a recovery m case the deceased 7mew of the defects in the machine. This is not the law. Although a correct instruction on the subject was'given elsewhere in the charge., still, as there must be a new trial, we notice this error, so that it may not be repeated upon the second trial, without determining whether or not it would be sufficient of itself to call for reversal of the judgment.

As to the nearness of declarations to the main transaction necessary to make them a part of the res gestee, see note to Ohio & M B,. Go. v. Stein (133 Ind. 243), in 19 L. R. A. 733. — Rep.

By the Gourt.— Judgment reversed, and action remanded for a new trial.