Dugal v. City of Chippewa Falls

101 Wis. 533 | Wis. | 1899

Dodge, J.

Special objection is made to question No. 3 ■and its answer. That question, it is apparent, is compound. Three different questions are incorporated in it, and are connected, not by the disjunctive, but by the word “ and.” In order to answer the question “Yes,” it would be necessary for the jury to be satisfied of all three, namely: That Dugal knew of the manner in which the worlt was conducted on the part of the defendant; secondly, that he knew the position and condition of the beam and plates in question; and, thirdly, apprehended the dangers resulting therefrom. If the jury had not been satisfied that he knew all three of these things, they must have answered the question “ No.” They may have been satisfied that he knew the manner in which the work was conducted, and the position and condition of the beams and plates in question, but were not satisfied that he apprehended the dangers resulting therefrom,— which would have been substantially a finding for the defendant if properly expressed; for., if he knew the facts, he was bound to apprehend the danger, be being of mature years and ordinary intelligence. Dahlke v. Illinois Steel Co. 100 Wis. 431; Hennesey v. C. & N. W. R. Co. 99 Wis. 109; Jones v. Sutherland, 91 Wis. 587; Hazen v. West Superior L. Co. 91 Wis. 208. The question is obnoxious to the criticism made by this court in Klochinski v. Shores L. Co. 93 Wis. 417; and Sherman v. Menominee River L. Co. 77 Wis. 14, and leaves the case wholly without any finding on the subjects involved therein. In other words, while the jury have found, first, that the city was guilty of negligence, which, second, was the proximate cause of the death of plaintiff’s intestate, send, fourth, that deceased was guilty of no want of ordinary care which contributed to his death, they have not found whether or not he had'that knowledge from which would result an assumption of the risk by him, so as to preclude the defendant from liability, unless they have found it by implication in their answer to the fourth question.

Counsel for respondent argued orally with much force that the third finding is immaterial, as the assumption of an unusual risk, such as this undoubtedly was, is contributory negligence, and the jury have, in answer to the fourth question, found deceased guiltless of any contributory negligence. This position finds much support from the opinion in Powell v. Ashland I. & S. Co. 98 Wis. 35. If, in the case at bar, the third question had neither been requested nor put, and the instructions had given the jury to understand that the question as to contributory negligence involved consideration of the assumption of the risk, we might think that such assumption had been negatived by the answer to the fourth question. In Hennesey v. C. & N. W. R. Co. 99 Wis. 109, this court pointed out a clear distinction, applicable more strongly here, between that case and Powell v. Ashland I. & S. Co. In the Hennesey Case the court below refused, on defendant’s request, to submit a question as to decedent’s knowledge of the perils, and the court held it error. As well stated by Mr. Justice Winslow in that case: While continuing in an employment with knowledge of unusual risks is contributory negligence on the part of an employee, it is only one specific phase, and not likely to occur to the jury in that connection, unless expressly called to-their attention by instructions, and, in absence of such careful instructions, ought to be submitted in a separate question.

Applying the same reasoning to the instant case, we find,, not only that such assumption of the risk was not pressed on the jury as one of the things which would constitute contributory negligence, but was carefully differentiated therefrom. They were instructed, in answering the fourth question, to consider the various other acts and omissions which might constitute contributory negligence on decedent’s part,, with no hint that remaining in the employment with knowledge of the perils was one of them. Not only this, but they were told to consider such conduct in a wholly different connection, namely, as only affecting their answer to the third question. The jury must have understood that, although they found deceased fully conversant with the situation and its' perils, so that they must answer the third question in the affirmative, they were nevertheless justified in finding absence of contributory negligence in answering the fourth. We cannot think, in view of the instructions in this case,, that the jury did in fact consider and negative decedent’s' knowledge of the risk in answering the fourth question. Such knowledge was one of the material issues in the case, and, unless negatived by the jury,' would defeat a recovery.

We conclude, therefore, that the third question and its answer should- have been set aside, and that the facts as found by the verdict are not sufficient to support the judgment in favor of plaintiff.

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