87 Wis. 245 | Wis. | 1894
The appellant’s contentions are two in number, and they go entirely to the merits of the case. They are: (1) That the plaintiff’s injury was the result of a pure accident for which no one is responsible; (2) that, under the evidence and the verdict, the plaintiff must be held to have assumed the risk of injury from the saw.
1. We cannot assent to the proposition that this was a pure accident, for which no one can be held responsible. It is true that the slipping of the plaintiff’s foot appears to have been purely accidental, for which neither he nor any one else can he said to be in fault. But the jury have found on the evidence that the keeping of the saw in its exposed condition was negligence on the part of the defendant, and that this negligence was the proximate cause of the injury. We cannot hold, as matter of law, that this finding is not justified by the evidence. It results, therefore, from the verdict and the evidence that the injury was caused by a
2. Nor can we say, as matter of law from the facts, that the plaintiff assumed the risk of the accident from which he suffers. The plaintiff assumed only.those risks and dangers which he knew, or which a person of reasonable care and prudence under like circumstances ought to have known and appreciated. Whether the risk from which plaintiff’s injury resulted was such a risk is a question properly for the jury. However, there is a manifest inconsistency between the fifth and sixth answers of the verdict, which necessitates a reversal of the case.
In answer to the fifth question, the jury find that the dangers and risks from the exposed saw would be apparent to any person using ordinary care and observation in like situation with the plaintiff. This must include the risk from which the plaintiff’s injury resulted, or else it is wholly irrelevant, and we so construe it. The question and answer, therefore, mean that the plaintiff was chargeable with knowledge of, and therefore assumed, the risk from which the accident resulted by remaining in the employment without objection. This is a form of contributory negligence. 2 Thomp. Neg. 1014, § 19; Nadau v. White River L. Co. 76 Wis. 120-131. In answer to the sixth question, the jury find that there was no contributory negligence on the part of the plaintiff.
Now, the only ground upon which i't was claimed that contributory negligence could be imputed to plaintiff was (as charged by the court) that he remained in the employment after he knew, or ought to have known, the risk which he incurred. This makes it very clear that the sixth question and answer amount to a finding that the plaintiff was
By the Court.— Judgment reversed, and action remanded for a new trial.
