Guinard v. Knapp-Stout & Co.

| Wis. | Apr 3, 1895

Winslow, J.

The vital questions which were presented by the pleadings and the evidence in this case were: (1) Whether the defendant was guilty of negligence which was the proximate cause of plaintiff’s injury, either in providing-unsafe machinery or in failing to instruct and warn the-plaintiff of its dangerous character; (2) whether the plaintiff himself was guilty of contributory negligence in not seeing and avoiding the revolving set-screw. Both of these-questions were answered by the jury favorably'to the plaintiff. We regard these questions as fairly questions for the jury and not for the court; and it necessarily follows that, if no errors were committed in the rulings on testimony or-ín the instructions to the jury, the judgment in this case cannot be disturbed. Examination of the charge, however,, convinces us that there were errors in the instructions which necessitate reversal of the case.

The defendant requested the giving of the following instruction : “ If you find that the plaintiff engaged with the defendant in the duty of oiling the machinery of its sawmill without at the time fully understanding or comprehending the dangers incident to his business, yet if you find that between the time of his employment and the time he was injured he learned of these dangers, or in the course of his employment ought to have known of the liability to accident by being entangled in the machinery, as he was, it is your duty to find that he assumed the risk of such injury as incident to his employment, and you cannot attribute the accident to the negligence of the defendant.” The court read this instruction to the jury, and added: “Now, gentlemen, as a general proposition of law that is correct, and as far as you find it applicable you may use it.” The defendant also asked the following instruction: “ It is the duty of the plaintiff to look at the machinery about which he is employed to work, and to apprise himself of any danger afforded by (the machinery itself and which he could have discovered or ought to have discovered by a proper examination thereof or by the use of his sight and other senses; and if he failed during the course of his employment, and while •engaged in the task of oiling the machinery, to apprise himself of the dangers which he ought to have seen, then the plaintiff was not in the exercise of ordinary care or prudence, and it is your duty to so find.” This the court read to the jury, and added: “ That you may consider as far as you find it applicable.”

The instructions above quoted stated correct propositions of law and were applicable to the testimony in the case. The appellant was, therefore, entitled to have them given to the jury without modification. It is plainly the duty of the court, and not of the jury, to decide when a legal proposition is applicable to the evidence. To give the jury a legal proposition, and say to them: “You may use this as far as you find it applicable,” comes very near being an abdication of the functions of the court. Under such an instruction the jury is given full license to decide that the proposition has no application to the case and disregard it entirely. The charge should contain only such propositions as are to be .applied to the evidence in the case. The court says to the jury, in substance: “ These are the propositions of law applicable to the evidence. Take them, apply them to the case, and return your verdict.” Such being the proper functions of the court and the jury, it seems very plain that the court erred in leaving it to the jury to decide whether the instructions were applicable to the case. A similar remark was disapproved by this court in Duthie v. Washburn, 87 Wis. 231" court="Wis." date_filed="1894-03-16" href="https://app.midpage.ai/document/duthie-v-town-of-washburn-8184500?utm_source=webapp" opinion_id="8184500">87 Wis. 231.

It is said that the court subsequently cured the error by charging the jury to the effect that a man must use due diligence and use his senses, and if he fails to use such diligence as a man of ordinary prudence would, and thereby suffers an injury, then he has not used ordinary care. But we cannot regard this as any fair equivalent of the propositions first above quoted.

The ninth question of the special verdict asks whether the plaintiff was injured by defendant’s want of ordinary care, which caused the injury. In submitting this question to the jury the trial judge said: “ If you find that there was a lack of ordinary care on the part of the defendant, you wifi answer this question accordingly. If you are not so satisfied, you will answer this question, ‘No.’ . . . If you are satisfied that it has been shown by a preponderance of the evidence that there was a want of ordinary care, your answer must be, ‘Yes.’ If you are not so satisfied, your answer to question 9 will be, ‘No.’ ” Nowhere in the charge do we find these expressions qualified. This seems to us to be clearly erroneous. The question asks whether there was a lack of ordinary care which caused the injury. The instruction says, in effect, that if there was lack of ordinary care it did cause the injury. This result does not follow. The jury must find not only the lack of care but that it was the proximate cause of the injury. Craven v. Smith, 89 Wis. 119" court="Wis." date_filed="1894-12-11" href="https://app.midpage.ai/document/craven-v-smith-8184706?utm_source=webapp" opinion_id="8184706">89 Wis. 119.

We are asked to hold that because the plaintiff, some time after he was employed as an oiler, applied to be retained in that capacity, he thereby represented himself as competent for the position and assumed all the risks. We cannot so hold. There is no evidence or finding that he was retained in his position on account of his request, or that the request had anything to do with the defendant’s action in the premises.

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