Hahn v. Rothstein, 174 Wis. 381

174 Wis. 381 | Wis. | 1921

Eschweiler, J.

We think the trial court should have set aside the answer of the jury to the first question of the special verdict whereby they found that the wringer in question, in the usual and customary manner of using it, was not as free from danger to the plaintiff as the nature of the work reasonably permitted.

In this instance it appears that a safety device was installed by the manufacturer on this machine similar to that on many other types of such machines being manufactured and sold in the general market. It thus appears that there had been no failure by the manufacturer to attempt, in a measure at least, to meet the requirements of the statute here involved.

It appears without contradiction that the form of guard vaguely suggested by plaintiff’s expert witness had been discarded by practically all of the manufacturers of such machines for the one installed and which seemed more reasonably adequate for this very purpose. While this alone is not sufficient as a matter of law to establish that defendant in purchasing and using a machine so equipped has thereby complied with the duty imposed upon him as an employer, yet it is very persuasive in this case in compelling us to arrive at the conclusion at which we do, namely, that the testimony in this particular case was not sufficient to warrant that finding by the jury and without which the judgment in plaintiff’s favor could not be supported. For this reason the defendants’ motion to set aside the verdict and for a new trial should have been granted.

In reaching this conclusion we have not overlooked not-are we unmindful of the many decisions stating the absolute nature of such a statutory obligation as indicated in such cases as Van de Zande v. C. & N. W. R. Co. 168 Wis. 628, 630, 170 N. W. 259, and cases there cited, and which are relied upon by respondent in support of the judgment herein. We are not hereby minimizing anything that is held in those cases, but are satisfied that the facts and circumstances in this case¡ do not present a situation that is controlled by the former decisions upon the same statute upholding the rights of an employee to recover as against the employer.

Appellants also contend that in no event could judgment be properly rendered against the defendant husband. The defendant wife testified: “We bought the machine.” She also said she supposed she hired the plaintiff on behalf of her husband as well as herself. In the absence of any testimony from the defendants in this regard, the defendant husband has no proper objection on that score.

Appellants also urge as prejudicial error the admission of certain testimony and of a remark by plaintiff’s counsel to the jury during the argument. Neither of such, if error, was substantial or prejudicial.

Appellants also challenge the assessment of damages as excessive. The physicians who treated plaintiff for her injury were not called to testify, and under the evidence before'us we cannot find sufficient proof of the necessary fact that the erysipelas from which plaintiff suffered some weeks after the injury and after she had returned to work was a result of the injury, and that element of damages should not have been considered by the jury upon the evidence then before them.

The question of plaintiff’s contributory negligence, if any, was for the jury and could not be decided as a question of law in defendants’ favor, as they have asked here.

For the reasons above stated it follows that the judgment must be reversed and a new trial granted.

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