Leque v. Madison Gas & Electric Co.
133 Wis. 547
Wis.
1907
Check Treatment
BjebwiN, J.

1. The first contention by -appellant is that a verdict for defendant should have been directed. Counsel insists that the deceased was guilty of contributory negligence as matter of law, and therefore the court erred in refusing to direct a verdict and in refusing to change the verdict of the jury on the question of contributory negligence. It is claimed that the deceased must be prestuned to have known and appreciated the ordinary hazards of the business, including those which the exercise of his senses and experience would have disclosed, and that the contact of the span wire with the feed wire was one of the ordinary hazards of the business; that deceased had been warned in writ-*551mg that electric wires carried bigb voltage and of tbe danger occasioned by tbe sagging or disarrangement of wires. It is further insisted that tbe undisputed evidence shows that tbe contact of the span wire with tbe feed wire was in plain view of deceased as be ascended tbe pole, and that tbe pole was provided with steps on which to climb as far as its lower arm, and that the lower cross-arm could be reached without contact with tbe span wire, and that there was no occasion for deceased to step on or come in contact with tbe span wire while ascending tbe pole. After a careful examination of tbe evidence we cannot say that tbe possibility of danger from a sagged wire was so imminent as to become one of tbe hazards of tbe employment, nor that tbe evidence establishes as matter of law that tbe deceased ought to have known or appreciated tbe danger. It is said that tbe contact with tbe span wire was a wholly unnecessary and reckless act, but tbe evidence is not very clear respecting tbe point of contact of tbe span wire with tbe pole. So far as tbe evidence shows, tbe step may have been in very close proximity to tbe span wire. Moreover, there is evidence that it was customary to step on tbe span wire in ascending poles. Tbe wires on tbe telephone pole did not carry a bigb voltage, and the span wire would not have been dangerous but for tbe negligence of tbe defendant in removing tbe guy wire so as to cause a sag in the span wire, and we think upon tbe evidence it was clearly a question for tbe jury whether tbe deceased ought to have known of tbe contact. There is evidence that tbe contact could not be noticed looking from tbe ground, and that you bad to get up on a level with the wire before you could see tbe contact. We think it clear from the evidence that tbe question of contributory negligence was for tbe jury. Peterson v. Sherry L. Co. 90 Wis. 83, 62 N. W. 948; Nelson v. C., M. & St. P. R. Co. 60 Wis. 320, 19 N. W. 52; Kaples v. Orth, 61 Wis. 531, 21 N. W. 633; Wilbert v. Sheboygan L., P. & R. Co. 129 Wis. 1, 106 N. W. *5521058; Nagle v. Hake, 123 Wis. 256, 101 N. W. 409; Illingsworth v. Boston E. L. Co. 161 Mass. 583, 37 N. E. 778; Comm. E. Co. v. Bose, 214 Ill. 545, 78 N. E. 780. We have carefully examined tbe authorities cited to our attention by counsel for appellant under this bead, but cannot think they are controlling.

2. Error is assigned because the court admitted evidence over defendant’s objection to the effect that it was the custom of linemen to step on and make use of dead wires in climbing poles. It is insisted by appellant, under this head, that the evidence admitted was not of a general custom, but in the •nature of individual practice of a limited class. Of course, such a general custom should be exercised as men of ordinary care and prudence would exercise under the same or similar circumstances in conducting their business. It is doubtless true that evidence of a custom obviously dangerous should not be admitted. Boyce v. Wilbur L. Co. 119 Wis. 642, 97 N. W. 563; Yazdzewshi v. Barker, 131 Wis. 494, 111 N. W. 689. In the instant case the evidence complained of was of a general custom, and the court limited the testimony to general custom. Stress is placed upon the fact that notice was given deceased to make examination of wires. But this warning by its terms was calculated to warn employees respecting poles having electric light or power wires attached to them. This warning, given in the form of a bulletin, was obviously for the purpose of warning of the usual dangers incident to the employment and not of the extraordinary and unknown hazard caused by the defendant’s negligence in removing the guy wire which caused the contact of the wires. We think no error was committed in admission of evidence regarding custom.

3. It is further claimed by counsel for appellant that the damages are excessive; that in an action for the death of an adult child it is necessary to show that the parent was an in*553digent or in a dependent condition in order to recover. The father of deceased had no property, was fifty-four years of age, and the mother forty-three at the time of the trial below. The physical condition of the mother was very poor; the father’s health fairly good. There were three children besides deceased, two girls, twenty and eighteen years of age, respectively, and a boy fifteen, the latter not self-supporting. The father was earning $40 a month. The deceased after becoming of age furnished some money to his parents. He was a bright, industrious young man, and was earning $40 per month, board, and room. He was killed six months after he was twenty-one years of age. There is evidence that he promised to take care of his parents, and that he did not expect to marry, at least “in the near future.” Sec. 4256, Stats. (1898), permits the jury to award such damages “as they shall deem fair and just in reference to the pecuniary injury resulting from such death to the relatives of the deceased specified in this section.” So under the statute the jury has a broad discretion. Potter v. C. & N. W. R. Co. 21 Wis. 372; Ewen v. C. & N. W. R. Co. 38 Wis. 613; Johnson v. C. & N. W. R. Co. 64 Wis. 425, 25 H. W. 223. This court at an early day gave construction to this statute. In Potter v. C. & N. W. R. Co., supra,, at page 374, the court said:

“The plaintiff was entitled to recover such damages, not exceeding $5,000, as the jury might deem fair and just in reference to the pecuniary injury resulting from the death of the daughter, Erances L. Bishop, to her parents. The statute does not say, in terms, on what principle the damages are to be assessed. But all the authorities are to the effect that vindictive damages are not to be given; nor are they to be given for loss of society, or as a solatium, or for injury to feelings; but they must be founded on pecuniary loss actual or expected, and should be calculated in reference to a reasonable expectation of pecuniary benefit, as of right or otherwise, from the continuance of the life.”

*554We think the question of damages was fairly submitted to the jury and within the limits prescribed by the decisions of this court, and we do not feel warranted in saying under the evidence that the damages are excessive. Ewen v. C. & N. W. R. Co. 38 Wis. 613; Johnson v. C. & N. W. R. Co. 64 Wis. 425, 25 N. W. 223; Bright v. Barnett & R. Co. 88 Wis. 299, 60 N. W. 418; Hayes v. C., M. & St. P. R. Co. 131 Wis. 399, 111 N. W. 471.

4. Error is claimed because the court refused to give an instruction requested to the effect that in determining whether deceased was guilty of any want of ordinary care they should take into consideration, together with all the other facts and circumstances in the case, the contents of bulletin No. 11 as received in evidence and the warnings and instructions contained therein, and any warnings conveyed to the deceased thereby of possible danger in stepping on a wire such as the span wire in question, and in instructing that this bulletin “is to be given the same force and effect as any other written or verbal statement of the duties and warnings of the dangers- incident to employment as a lineman for the telephone company, which warning or instruction should have been made by those of equal experience or knowledge of the duties and dangers incident to the- employment.” This part of the instruction given and above quoted is criticised on the ground that it left the jury free to disregard the bulletin as a warning if they thought it did not come from the proper' source. The court, however, in the charge informed the jury that the bulletin was issued by the telephone company. Counsel also criticises the following portion of the charge on contributory negligence: “If the defendant has satisfied you by preponderance of the evidence,” on the ground that the jury might have inferred from this form of expression that they must be satisfied of the fact by evidence coming from defendant and its witnesses. We do- not think the charge is subject to this criticism. Hardt v. C., M. & St. P. R. Co. *555130 Wis. 512, 521, 110 N. W. 427. We find no reversible error in tbe record and think the judgment should be affirmed.

By the Court. — The judgment of the court below is affirmed.