146 Wis. 1 | Wis. | 1911
By the first, second, third, fourth, eleventh, and twelfth findings in the special verdict the jury found in substance that the face derrick in question was not placed and operated so as to give proper protection to the life and limb of plaintiff, because of its being on wheels and not so fastened as to prevent its moving on its wheels and tipping over, and that such was the proximate cause of his injury; that plaintiff did not know nor comprehend the danger from using the derrick in the condition it was in, and that he ought not, in the exercise of ordinary care, to have discovered and appreciated such danger; that he was not guilty of contributory negligence; and that he sustained $2,150 damages.
These findings, if consistent with other answers to ques
It is plain from tbe form of tbe first question that tbe court endeavored to follow tbe statute, sec. 1636 — 81, Stats. (Supp. 1906: Laws of 1901, cb. 257, sec. 1), in submitting it to tbe jury. And we tbink tbe answer is a finding that tbe face derrick was not properly placed and operated because of being on wheels and not so fastened as to prevent its moving and tipping over. If there was any vagueness or ambiguity in tbe question its meaning was made plain in tbe charge and tbe jury could not have misunderstood it.
It is further insisted that tbe first question, in asking as to construction and operation of tbe face derrick, covers more than one controverted issue, and, besides, that the answer to this question is inconsistent with tbe answers to tbe fifth and sixth questions. Tbe first question, when viewed in tbe light of tbe statute (sec. 1636 — 81) and tbe charge, was not objectionable as covering more than one controverted issue. Tbe word “constructed” in this question manifestly refers to tbe placing of tbe derrick, not to tbe physical construction of tbe derrick itself. This seems clear from a reading of tbe whole question. Tbe question asks, “Was” tbe derrick “not so constructed and operated as to give proper protection to tbe life and limb of tbe plaintiff, because of Us being on wheels
The argument of counsel for appellant is that the only duty with which the defendant was charged was to exercise ordinary care, and that the defendant is not charged with the negligence of a fellow-servant. The statute provides:
“A person employing or directing another to perform labor of any kind in the erection, repairing, altering or painting of a house, building or structure shall not furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders or other mechanical contrivances, which are unsafe, unsuitable or improper, and which are not so constructed, placed and operated as to give proper protection to the life and limb of a person so employed or engaged. . . Sec. 163G — 81, Stats. (Laws of 1901, ch. 251, sec. 1).
Counsel for appellant contend that the validity of the answer to the first question of the special verdict depends upon the answers to the fifth and sixth questions, because they say that the defendant is not charged with the duty of exercising any greater degree of care than that exercised by men of ordinary care and experience under similar circumstances. And upon this ground it is argued that the answer to the first question is inconsistent with the answer to the fifth question. .Whether the defendant was chargeable with the exercise of more than ordinary care we need not and do not decide in this case, because under the findings of the jury it is unnecessary to do so. The jury found that the statute was violated, that such violation was the proximate cause of the plaintiff’s in
It is also contended tbat if tbe first question is a finding
. The Burden of the argument of counsel for appellant upon this proposition is (1) that the derrick was properly constructed, and (2) that the falling was caused by the negligence of a fellow-servant, if any negligence there was, for which the defendant is not liable. As before observed, no claim is made by plaintiff that the physical construction of the face derrick itself was not proper. But there is evidence sufficient to support the verdict that it was not securely placed and fastened so as to prevent it from falling. The point that' the falling was caused by the negligence of a fellow-servant in not properly placing it cannot avail the defendant, as we-have seen. The plaintiff was ordered to work at the point of danger by the defendant’s foreman, who- had full charge of' the work, and the jury found upon sufficient evidence that the plaintiff was not guilty of contributory negligence. It is-insisted that the answers of the jury to the third and sixth questions are not supported by the evidence.
Respecting the third question it does not appear from the evidence that it can be said as matter of law, from his experience and knowledge of the operation of such derricks,, that plaintiff should be charged with knowledge of the danger. The facts found by the seventh and eighth findings as to proximate cause, in addition to the proximate cause found by the first and second questions of the special verdict, do not affect the judgment. The first and second findings of the jury, being supported by the evidence, cannot be said to be inconsistent with the facts found by the seventh and eighth
Error is assigned in the admission of evidence. Evidence was admitted, under defendant’s objection, to the effect that after the injury the men operating the cranks attached to the drum on the face derrick were removed from the position formerly occupied at such work and placed some sixty feet away outside of the building and the rope led from the face derrick to a crank set up sixty feet from the derrick. We find no prejudicial error in the admission of this evidence. One of the claims of the plaintiff was that in the opération of the derrick the men were required to stand in a dangerous-position, and the evidence was offered and received to show that it was practicable to have the men operating the power-stand out of danger as they did after the injury, and the evidence was offered, not for the purpose of showing negligence on the part of defendant, but to show it was practicable to so-place the men furnishing the power that they would be out of danger. Eor this purpose the evidence was properly admitted. Grundy v. Janesville, 84 Wis. 574, 54 N. W. 1085; Lind v. Uniform S. & P. Co. 140 Wis. 183, 120 N. W. 839 Norris v. Atlas S. S. Co. 37 Fed. 426; Laporte C. Co. v. Sullender, 165 Ind. 290, 75 N. E. 277; Redepenning v. Rock, 136 Wis. 372, 117 N. W. 805; Willey v. Boston E. L. Co. 168 Mass. 40, 46 N. E. 395; Quinn v. N. Y., N. H. & H. R. Co. 56 Conn. 44, 12 Atl. 97; Kuhns v. Wis., I. & N. R. Co. 76 Iowa, 67, 40 N. W. 92.
We are convinced that the first, second, third, fourth, eleventh, and twelfth findings are sustained by the evidence and support the judgment. We find no reversible error in the record.
By the Gowrt.- — Judgment is affirmed.
