96 Wis. 170 | Wis. | 1897
The alleged negligence consisted in the use -of a cast-iron bend attached to a wronght-iron pipe in the manner described in the complaint. All the evidence to establish want of ordinary care on defendant’s part was directed to the question of whether such a bend was generally considered reasonably safe and was in general use for the purpose to which it was put in defendant’s steam plant, at and before the time of the injury. The jury determined that question in defendant’s favor, by finding that such pipe and bend were constructed of the materials and in the manner •ordinarily and usually employed in the construction of such pipes and bends at and prior to the time of the accident. True, the jury also found that safer appliances were known, that the bend in question was obviously defective, and that ■defendant was guilty of want of ordinary care, which was the proximate cause of the injury; but the obvious defect referred to clearly goes only to the fact that the bend was •of cast iron and attached to a wrought-iron pipe. It does not change the effect of the finding that the appliance was ■one of the kind ordinarily used, both in respect to material, •construction, and adjustment. If the finding of want of ordinary care was based on the use of the cast-iron bend, which was a usual appliance and usually found safe,, the two findings directly contradict each other. If it is directed to the finding that there was a safer appliance known at that time, it applied the rule that a person, in the use of machinery, must take advantage of known improvements in the direc
So, the effect of the verdict as a whole was to find both that defendant was free from actionable negligence, and was guilty of such negligence. A verdict so contradictory and inconsistent is insufficient to sustain a judgment. Conroy v. C., St. P., M. & O. R. Co., post, p. 243. This case is ruled by the decision in Guinard v. Knapp-Stout & Co. Company. It is there held in effect that a person in the conduct of his business, who furnishes an employee with a place to work as free from danger as other persons of ordinary care and caution, and engaged in like business and under like circumstances, ordinarily furnish, his duty in that regard is fully performed. It may be taken as the settled law that the test of actionable negligence, in a case where the servant seeks to recover damages for injuries alleged to have been caused by failure of duty on the part of the master in respect to furnishing such servants a reasonably safe place to work, is whether the master came up to the standard of
Applying the foregoing to the facts of this case, it is plain that the jury acquitted the defendant of any breach of its duty to exercise ordinary care in respect to furnishing plaintiff’s intestate with a reasonably safe place to work, and then followed with the inconsistent finding that defendant was guilty of a want of ordinary care in that respect. A judgment rendered on such a verdict is without any basis to support it.
Several errors are assigned in the brief of counsel for the appellant, which need not be noticed, for if errors in fact and prejudicial as well, they are not liable to occur upon another trial
By the Court.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.
