145 Wis. 385 | Wis. | 1911
Tbe following opinion was filed January 10, 1911.
In this case there was evidence tending to show that in one of tbe basement rooms of defendant’s factory, called tbe plating room, there was near tbe north wall a tank containing a solution of cyanide of potassium. Immediately south of tbe center of this tank, pendant from this basement ceiling and extending down a little below tbe upper rim of tbe tank, there was an iron pipe connected with tbe city water supply, carrying a faucet on its lower end, to which was often or usually attached a length of rubber hose which extended southward through part of the room on the floor and had its other and open end raised up to and lying over the edge of and partly into a receptacle located near the center of the room called the scrubbing tank. On the south wall of this basement room was a hot-water tank and there were other tanks in the room. The city water flowed through this pipe into the hose and from the open end of the hose into the scrubbing tank. The employees of defendant, to the knowledge of defendant’s superintendent, were accustomed to go into this plating room and drink from the flowing open end of this hose which rested upon said scrubbing tank. On October 21, 1907, shortly after 5 o’clock in the evening, the superintendent of defendant caused the north end of this hose to be detached from the water pipe mentioned and thrust into the solution of cyanide of potassium in the tank containing this liquid. The extension of the hose lay on the floor as usual, leaving the south open end thereof at the scrubbing tank as usual. He did this to syphon the contents of the tank containing the poisonous liquid into the scrubbing tank. The solution of cyanide of potassium thus syphoned over to
“Now, Julius, don’t go down for wash water tonight, *1 am running the bronze solution over into the scrubbing tank and if you get some of that it will take the hide off of you.”
The plaintiff’s decedent slapped his hand on the shoulder of the superintendent and replied:
“Don’t tell me about that stuff, Glenister, I have worked in a plating room. He also made the remark that he used to have his fingers all cracked open.”
One Hoppe, a fellow workman, also testified substantially to the same effect. There were contradictions and improbabilities tending to show that this testimony might not have been true, But the case might also be disposed of on the hypothesis that this warning was given in the words above quoted. At 5 :25 p. m. plaintiff’s decedent and Hoppe quit their work for the day in the polishing room on the first floor, and went down the stairs and into the plating room in the basement to get hot water for washing themselves, as was their custom. They went first to the hot-water tank, filled their buckets with hot water, and decedent first went to the scrubbing tank apparently for the purpose of cooling this water
The question arises whether under the circumstances ordinary care required the defendant, under whose authority this insidious and deadly change was made, to give a fairly specific warning to the men accustomed to drink from the open end of the hose. This is not the case of a master instructing his employees concerning the dangers attendant upon work to be done by the latter. What would be a sufficient warning in that case might not be a sufficient warning in a case like this. The warning alleged to have been given in the instant case might have been found to be misleading. It seemed to relate only to washing. Nothing would have been easier than to station a man at the place where the employees usually drank, or to indicate by placard or some similar means that the ordinary healthful beverage had been changed to poison, or to specifically inform the decedent as stated in the first question of the special verdict. There was a special verdict returned by the jury, the first question and answer of which were as follows:
“Was the defendant guilty of a want of ordinary care in failin'g to inform plaintiff’s intestate that a poisonous solution was running through the hose in question? A. Yes:”
This was followed by a finding of proximate cause, lack of contributory negligence, and damages, each favorable to the plaintiff. Extended discussion is indulged in relative to whether or not there was any evidence sufficient to negative the testimony of Glenister and Hoppe to the effect that they had warned deceased as quoted. But there was no evidence offered to show that any one on behalf of defendant expressly informed plaintiff’s intestate “that a poisonous solution was running through the hose in question.” This is the only 'finding relating to defendant’s negligence, and if the judg
Tbe defendant failed to request tbe submission of any broader question. It merely requested that tbe court submit tbe following, even narrower than tbe question submitted in that it contained no finding of negligence: “Did tbe defendant fail to inform plaintiff’s intestate that a poisonous solution would be run through tbe hose on October 21, 1907 V’ Tbis seems to indicate that counsel on both sides recognized and led tbe court to believe that a specific warning to tbis effect was necessary, although there was no evidence that such specific warning was expressly given. Tbe form of tbe question submitted is faulty and should not ordinarily be used, because in a case where it is contended on tbe part of tbe defendant that tbe act or omission relied on by tbe plaintiff to-constitute negligence never in fact occurred, a question like tbis might be understood as assuming that tbe negligent act or omission occurred and that tbe jury was required to determine only whether or not tbe defendant was guilty of a want of ordinary care by reason of such act or omission, which tbe question might be taken to assume bad been established. Tbe question should be divided into two, one asking whether tbe act or omission occurred, and tbe other asking whether tbis occurred in consequence of lack of ordinary care on tbe part of tbe person accused of negligence. Or tbe question might be recast into one question in such form that tbe jury would be more clearly required to pass upon tbe fact whether or not tbe act or omission in question occurred, and also-whether or not it occurred in consequence of lack of ordinary care. But we do not consider tbis error in tbe form of question sufficiently serious to call for reversal in tbe instant case. Tbe mere fact that there was no evidence that such specific warning was given would not authorize tbe court to direct a verdict for tbe plaintiff, because the inference of lack of ordinary care to be drawn from tbe failure to give such specific
No such questions were requested by tbe. defendant. Tbe only question requested by defendant relating to negligence or lack of negligence on its part was that hereinbefore noticed. Tbe defendant did request tbe submission of a question relating to tbe contributory negligence of tbe plaintiff’s decedent; but tbe court properly covered tbe same issue by a question in tbe usual form.
With reference to defendant’s negligence tbe court charged tbe jury:
“In determining whether or not tbe defendant exercised due care in respect to giving tbe deceased a warning, you may consider, if you find that tbe warning was given, tbe definiteness or lack of definiteness of such warning, its ambiguity, if any, or freedom from ambiguity, its remoteness or lack of remoteness in point of time from tbe time of probable contact with such danger, and all tbe other evidence, facts, and circumstances in tbe case. . . . Tbe duty to instruct does not go so far as to require tbe master to acquaint tbe employee with every possible danger to which be may be subjected in tbe course of bis employment. Tbe master has tbe right to assume that tbe servant will see and appreciate those dan-, gers which are open and obvious to a person of ordinary comprehension and will use tbe knowledge and experience be has gained in tbe course of bis employment.”
Erom all this it seems that tbe trial was conducted upon tbe theory that if tbe warning alleged to bave been given, con
Many errors are assigned which we cannot undertake to notice separately in this opinion. They bave been all examined. We find no prejudicial error in giving tbe instruction relative to tbe burden of proof on tbe question of negligence sandwiched in among tbe instructions relative to proximate cause. Tbe form of the special verdict relative to proximate cause justified tbis. Some óf tbe requested instructions are covered by the charge given; some call attention too partially to particular items or phases of tbe evidence; some are correct and might bave been given, but there was no prejudicial error in tbe refusal.
Tbe defendant bad the right to present its evidence by deposition and no unfavorable inference should be made because it chose or was compelled to choose tbis lawful mode. But tbe comments of plaintiff’s counsel in tbis respect were corrected by a ruling of tbe court and no prejudice resulted therefrom. We find no prejudicial error in tbe rulings on the admission of evidence.
By the Gowrt. — Judgment affirmed.
A motion for a rehearing was denied March 14, 1911.