126 Wis. 492 | Wis. | 1906
The errors claimed by the appellant will be briefly considered.
“When he [plaintiff] hollered of course he picked up his box and went away, so I paid no more attention to him. So I just raised up out of my position, and I ketched the lever with both hands, and this line had the hook on it. They had thrown the hook, and the hook was swinging, and she came up swinging in that position; but I didn’t stop. She struck Tinder the steel, and the hook jumped up. I kept on going just the same. I didn’t stop till I seen the man come running. lie stopped me.”
Comment on this seems unnecessary. It affords ample ground for a finding that the hook was raised with negligent speed and swinging violently.
“You are instructed tbat if tbe defendant used reasonable care in tbe employment of tbe boister, Mertes, and was satisfied tbat be was a fit and competent man to perform tbe duties-of boister, tire defendant performed bis full duty, and is not liable for a careless act of tbe boister, unless tbe boister, between tbe hiring of -tbe boister and tbe time of tbe accident, became incompetent and tbe defendant bad knowledge thereof.”
There are two answers to this assignment: First, tbe instruction is one touching tbe general question of the liability of tbe defendant, is not applicable to any of tbe questions of fact submitted by tbe special verdict, and hence could not properly be given to tbe jury. Second, it is erroneous because it requires that tbe defendant should have actual knowledge of tbe subsequently acquired ineompeteney of tbe servant, whereas it is sufficient if in tbe exercise of reasonable care tbe defendant should have ascertained tbe fact of sucb incompetency. Kamp v. Coxe Bros. & Co. 122 Wis. 206, 99 N. W. 366.
By the Court.- — Judgment affirmed.