Klochinski v. Shores Lumber Co.

93 Wis. 417 | Wis. | 1896

Pinitet, J.

1. The special verdict is so defective that it ■does not warrant or support the judgment. The special ■question above quoted is certainly unique, but, with its answer, is wholly inadequate to show that actionable negligence of the defendant was the proximate cause of the plaintiff’s injury. After a manifestly strenuous effort at certainty of statement and clearness of definition, it still fails to comply with the well-settled rule requiring questions to be submitted to be single, direct, and plain questions. Carroll v. Bohan, 43 Wis. 218, 221. A verdict must be certain, at least to a common intent, and must directly, fairly, and fully respond to the material issues in the case, so as to stand as a final and unequivocal decision of the matter with which it deals. McGowan v. C. & N. W. R. Co. 91 Wis. 141, 151. The question is compound, and, while calling for an affirmative answer, it is in the alternative. “Was the defendant guilty of negligence, or a want of ordinary care, or such care,” etc., “which was the proximate cause of the plaintiff’s injury ? ” The question was framed in objectionable terms, and the verdict as a whole is fatally defective for uncertainty, and for that it does not extend to and cover a material part of the issue, in respect to which the evidence was conflicting. It is uncertain whether the negligence imputed to the defendant was the negligence of the superintendent, Murray, or of the sawyer, both of whom, it will be seen, were at the time to be regarded as the fellow-servants and co-employees of the plaintiff, or whether this finding relates to the failure of the defendant to warn the plaintiff of any danger in performing the work required of him, and of which it was found he was wholly ignorant. If it relates to the latter, these findings are defective in that they do not find an indispensable part of the issue, namely, that the defendant, “ well knowing the plaintiff to be without skill and knowledge of the work, and well knowing its dangerous character,” failed to so inform the plaintiff. Here the verdict fails on the question of proximate cause, for, unless the defendant-knew or ought to have known of some occasion for information or instruction on this point, its neglect to impart any could not be regarded as the proximate cause of any injury that ensued to the plaintiff for want of such information or instruction. The mere fact that he was injured because he was inexperienced and ignorant of the danger and hazard would not suffice to charge the defendant.

2. The plaintiff, in his testimony, imputes negligence to-the sawyer as being an efficient cause of his injury; but, if this was established, it would have been the negligence of a co-employee or fellow-servant in a common employment of the same master, and would furnish no ground of action against the latter. The same holds good, we think, as to the alleged negligence of Murray, the superintendent and manager of the defendant company. Whether he is to he considered as a vice-principal of the defendant, or a co-employee and fellow-servant of the plaintiff, depends, not upon Murray’s grade or rank, but upon the work being performed by him and the plaintiff at the time. The evidence is quite clear that Murray took hold at the time as a volunteer to-do the work on the log deck in place of one just disabled, and he called the plaintiff to assist him in doing it. This was no part of Murray’s duty as superintendent or manager, and it would seem that he and the plaintiff, in any view that can fairly be taken of the case, must be regarded as co-employees and fellow-servants of the defendant, engaged in a common employment. Whatever order or direction Murray gave to the plaintiff after he commenced the work on the log deck, and while working there with Murray, must be regarded as the order or direction of a co-employee or fellow-servant and not of the vice-principal of the defendant. Dwyer v. Am. Exp. Co. 82 Wis. 307; Stutz v. Armour, 84 Wis. 623; Kliegel v. Weisel & V. Mfg. Co. 84 Wis. 148; Hartford v. N. P. R. Co. 91 Wis. 374. But if Murray, as superintendent and vice-principal, negligently and improperly directed the plaintiff to work on the log deck with him, without giving him necessary or proper warning or instruction as to the danger and hazard of working there, for the lack of which he got injured, this must be regarded as the negligent act of the defendant, for which it would be liable.

For these reasons the judgment of the circuit court is erroneous.

By the Oourt.— The judgment of the circuit court is reversed, and the cause is remanded for a new trial.