88 Wis. 343 | Wis. | 1894
1. The defendant insisted by ifs answer that the plaintiff’s injury was caused by negligence on his part contributing to the result, and as the question of negligence on the part of either party to such actions as the present is often, as in this case, largely one of inference from the facts in evidence, the court should, we think, have submitted to the jury the question whether the plaintiff was guilty of negligence on his part contributing to the injury of which ho complains. That the jury were not instructed on this point, and that there was no finding upon it, seems to have been the result of inadvertence; but the absence of such a finding is an error, in the state of the record before us, that is fatal to the judgment and renders its reversal necessary.
2. The case was fully argued on the merits, and as it is probable that the evidence on another trial will not be materially different from that now presented, it is manifestly proper to consider the question whether the case should have been submitted to the jury at all. It is perfectly obvious, as found by the jury, “that the accident was the result of the usual and ordinary risks of the employment he was engaged in,” and equally so that in the exercise of common sense and ordinary prudence he must have known and appreciated the risk of the employment, and therefore must be held to have assumed such risk upon entering upon the work in which he was engaged when injured. He waa
The fact that Burns, the foreman, told the plaintiff, whem he objected to working on the spindles driven by steam,.
Eor these reasons it is plain that the recovery cannot be sustained.
By the Court.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.