156 Wis. 161 | Wis. | 1914
The first error assigned is the refusal of the court to permit several of the jurors to be examined as 'to their business relations or connections, if any, with the Royal Insurance Company or with the Casualty Company of America. Questions well calculated to disclose the business relations, if any, of the jurors with these two companies or their local agents were put to them in various forms by counsel for plaintiff, and the objections thereto were in each case sustained by the court. The array was challenged. Counsel did not'claim upon the trial, nor is there now any claim or suggestion, that either of the insurance companies was directly or indirectly connected with or interested in the controversy. , Such being the case, the rulings were correct. Time should not be wasted, nor prejudice injected into a case, by an examination of jurors to determine their qualifications on a subject that is not even claimed to be relevant and which cannot be seen or presumed by the court to be so. In Faber v. C. Reiss C. Co. 124 Wis. 554, 102 N. W. 1049; Chybowski v. Bucyrus Co. 127 Wis. 332, 106 N. W. 833; and Howard v. Beldenville L. Co. 129 Wis. 98, 108 N. W. 48, claims or suggestions were made to the court that insurance companies were interested in the result of the litigation, and it was held that jurors might be interrogated as to their connection with them in order to determine or aid in determining their qualifications to sit upon the jury. The record here fails to show any connection or even claim of' a connection between the insurance companies named and the suit being tried.
A number of exceptions are taken to the exclusion of evidence relating to the issue as to whether or not the gearings were so located as to be dangerous to employees in the discharge of their duties. There were two grease cups located
Defendant’s foreman, Carroll, was standing near the machine at the time of the injury, and he was permitted to testify that immediately after plaintiff was hurt the witness turned around and was then about five feet from plaintiff, and asked him how did it happen, to which plaintiff replied, “It was my own fault, my fingers got ketched in the gearing.” Plaintiff then proceeded immediately across the street to the office of the Superior Water, Light & Power Company, and as he was going towards the office and while within 100 feet of the place of the accident he said to the witness Boss that it was his own fault — nobody’s fault but his own. The witness Boss did not claim to have seen the accident and testified in chief only as to what the plaintiff said to him as he was going towards the office of the Superior Water, Light & Power Company. It is urged that the testimony of the foreman, Carroll, was improperly -received because see. 4079m, Stats. 1911,- provides:
“In civil actions for damages caused by personal injury no statement made or writing signed by the injured party within seventy-two hours of the time the injury happened or accident occurred, shall be used in evidence against the party*166 making or signing the same unless such evidence would be admissible as part of the res gestee."
That the statements made by the plaintiff to the witnesses Carroll and Ross immediately after the injury were admissible as part of the res gestee is clearly established by the decisions of this court. Rideout v. Winnebago T. Co. 123 Wis. 297, 101 N. W. 672; Zoesch v. Flambeau P. Co. 134 Wis. 270, 114 N. W. 485; Cohodes v. Menominee & M. L. & T. Co. 149 Wis. 308, 135 N. W. 879. The court also properly excluded any cross-examination of the witness Ross as to how the injury happened, because the witness did not testify in chief as to how it happened, nor; so far as the record shows, did he know or claim to know how it occurred.
In proving his case in'chief the plaintiff introduced testimony as to what his duties were, as to what were the positions of the different employees about the machine at the time he was injured, and as to orders and directions alleged to have been given to him by the defendants as to the management of the machine. Among other things he testified that one Det-linger was present and at times gave 'orders how the work should be done; that in his presence Mr. Russell told plaintiff not to shut the machine down a minute; that he must keep it running; and that he instructed plaintiff to go up and fix the chain at the time of the accident. He also testified that before the accident he was told by Mr. Detlinger to do the work of fixing the trap or the tank while the machine was running. Mr. Russell denied that he gave any such directions to plaintiff as were testified to by him, and so did Mr. Detlinger, and the latter testified that he told the plaintiff that if he wanted to go up on the machine he should go on the far side, or shut it down; that he told him more than once that it was dangerous. Upon rebuttal plaintiff offered several witnesses to testify to the fact that no such orders or directions were given the plaintiff as were testified to by Mr. Russell and Mr. Det-linger. The court excluded such testimony on the ground
“The way-1 come to get my hand, in that gearing, I was fixing the chain which was broke. When I fixed the chain, I did not draw the chain over the gearing;. I drew it over towards me when I stood on the wheel; I drawed it to the side of the rearing. I stood on this wheel which is in the rear*168 of the gearing. When I drew it to me I drew it as I drew it across here (indicating). I drawed it pretty near even with the gearing; you can draw it alongside of the gearing. I was standing on the wheel in the rear of the gearing; the chain is to one side of the gearing ... I had the chain right alongside of the gearing. The chain as it hung down from the tank hung towards the front end of the drum, and when I stood on the wheel I was toward the rear end of the drum; when I drew it to me. I did not draw it somewheres near across that gear or this cog-wheel on the big drum; I drawed it near the side of the cog-wheel ... I was putting a wire on it to put it together; wiring the two pieces of the chain together; the piece that was left and the piece that was broke off . . . (The chain) hung down past the shaft about four inches. I did not lose my balance ... I was not dizzy or anything of that sort; nobody struck me ... I had a wrist glove on; by wrist glove I mean a glove that the glove projects over the wrist; goes up over my coat; I had on a jacket. The finger part of the glove went in and my fingers were in it.”
Inasmuch as plaintiff had two obvious safe ways of fixing the chain, the jury no doubt found he was guilty of contributory negligence because he voluntarily assumed an obviously dangerous way instead of either of the two safe ways. One safe way was to shut the machine down and stop the revolving gearings; the other, was to go up on the frame on the other side, where he would have been equally near to the chain, and fix it from that side. Had he done so, it would have been impossible for him to have been injured by the gearing, because the contactual surfaces thereof would have revolved towards him and so could not have drawn his hand into the gearing even if he had come in contact with it. The jury presumably found that his negligence consisted in attempting to fix the chain from the side he did in the face of obvious danger, when, either by shutting the machine down or going to the other side, he could have fixed it with perfect safety. Such being the uncontradicted testimony, the offered evidence excluded upon rebuttal does not become very material and its exclusion cannot be held to be prejudicial error.
In arguing the case to the jury plaintiff’s counsel said: “You heard the questions put to these witnesses called upon the stand this morning and the objections to them,” referring to questions propounded to certain witnesses in rebuttal. The court remarked: “The jury has no right to consider evidence that is excluded nor questions to which answers were excluded.” The plaintiff excepted to such remarks of the court, claiming them to be prejudicial. The only redeeming feature about the exception is that it is not very seriously urged in the brief;
Among other questions submitted to the jury was the following: “Was the plaintiff, prior to the injury, instructed not to go upon the machine on the side where the gearing was located, when the machine was running ?” It is claimed this was prejudicial error because the submitted question bore upon no ultimate issuable fact. That is true. The verdict would have been and was complete 'without it. But the fact as to whether plaintiff was so notified or instructed was sharply litigated upon the trial, and its inclusion cannot be held to be prejudicial error where all the ultimate issuable facts are covered by the other questions of the special verdict.
The plaintiff requested the court to charge the jury as follows :
“Although admissions of a party satisfactorily proven tending to disprove the claim made by him may be considered by the jury, yet evidence of casual conversations or admissions by a party, made in casual conversations and to disinterested persons, are regarded by law as very weak testi*170 mony; owing to the liability of the witness to misunderstand or forget what was really said or intended by the party. All admissions made by a party to third and disinterested persons is the weakest kind of evidence that can be produced.”
Substantially similar instructions were approved in Haven v. Markstrum, 67 Wis. 493, 30 N. W. 720, and in Emery v. State, 101 Wis. 627, 657, 78 N. W. 145, where they were applicable. The court refused to give the instruction, and the plaintiff excepts on the ground that it was relevant and material to the testimony given by the witnesses Carroll and Ross as to what the plaintiff is claimed to have said to them immediately after the injury occurred. The refusal was proper. The evidence given by the witnesses referred to, was not in the nature of admissions within the meaning of the instruction requested. The evidence was strictly a part of the res gestee — statements or expressions made by the plaintiff at the time of his injury or so near thereto as to characterize the act. There is a clear distinction between evidence of such statements and evidence of admissions made subsequent to the injury and so remote therefrom as not to be a part of the res gestee. Felt v. Amidon, 43 Wis. 467; Hermes v. C. & N. W. R. Co. 80 Wis. 590, 50 N. W. 584; Garske v. Ridgeville, 123 Wis. 503, 102 N. W. 22.
Plaintiff also complains of the instruction given with reference to proximate cause in so far as it affected the question of contributory negligence, contending that it omitted an essential element, to wit, the element of reasonable anticipation. It is to be regretted that counsel did. not print the whole instruction as given by the court. If he had, he would have discovered that the element of reasonable anticipation was properly covered by the instruction given. The court said:
“You cannot find the absence of a guard over the gearing in question to have been the proximate cause of the injury here unless such injury was the probable as well as the natural consequence of the absence of such guard, and you can*171 not find tlie absence of a guard over tbe gearing in question to bave been tbe proximate cause of plaintiff’s injury unless a person of ordinary intelligence and prudence ought reasonably to bave foreseen that an injury to another might probably follow as a natural result of tbe absence of such guard.”
Tbe following instruction requested by plaintiff was refused: “As to question 3, you aré instructed that tbe mere fact that plaintiff knew, understood, and appreciated tbe danger of injury from tbe exposed gearing will not justify you in finding him guilty of contributory negligence.” Tbe court in its charge under this question said: “You are instructed that tbe mere fact that tbe plaintiff knew, understood, and appreciated tbe dangers of tbe exposed gearing will not justify you in finding him guilty of contributory negligence, but .it must appear that, knowing, understanding, and appreciating 'the dangers of tbe exposed gearing, be did not exercise ordinary care to avoid injury therefrom.” It will thus be seen that tbe requested instruction was substantially given in tbe charge.
Under question 3 tbe court instructed the jury as follows:
“There is evidence in tbe case as to certain statements made by the plaintiff immediately after tbe accident as to its being bis own fault. You are instructed that where witnesses testify to statements claimed to bave been beard by them, and other witnesses testify that they did not bear such statements, tbe positive testimony, if otherwise credible, is usually entitled to more weight than negative testimony.”
It is claimed it was error to give this instruction, because there was no situation disclosed by tbe evidence to which it applied. In this counsel is mistaken. Tbe witnesses Carroll' and Ross on behalf of tbe defendants testified that plaintiff made such statements to them. Tbe witnesses Zimmerman, Janitz, and Bigby each testified that be was near tbe plaintiff at tbe time these statements were claimed to bave been made and that be did not bear plaintiff make them or
The claim that the evidence is not sufficient, to sustain the finding of contributory negligence is negatived by what has already been said.
By the Court. — Judgment affirmed.