97 Wis. 476 | Wis. | 1897
Evidence was allowed, under objection from defendant’s counsel, respecting the effect on plaintiff’s right eye of the injury to the left ejm. t The complaint charged that the direct injury from the breaking of the glass was to the left eye. We see no reason why evidence as to all the injuries to plaintiff, which flowed naturally from the destruction of the left eye, was not competent. The objection to the evidence was properly overruled.
Plaintiff was allowed, under objection, to answer the question : “What, in your opinion, was the cause of the explosion of the glass ? ” That was one of the most essential questions
It was further assigned as error that the court denied defendant’s motion to direct a verdict. The motion was based on the theory that plaintiff and Welk were fellow-servants and that the circumstances were such, if plaintiff is to be believed, that he assumed the risk of Welk’s incompetency by remaining in the defendant’s employ with knowledge thereof. The rule in Erdman v. Illinois Steel Co. 95 Wis. 6, is invoked to sustain the claim that plaintiff was guilty of contributory fault under the circumstances, notwithstanding he remained at his post, if such be the fact, on the faith of defendant’s promise to remove the incompetent co-employee. There is no controversy but that, generally speaking, if an employee notifies the master of a special risk, as for instance that of the incompetency of a fellow employee, and objects to continuing in the master’s employ on that account, but never-
A large number of questions were submitted by defendant, relating to the subject of negligence in respect to the water-glass.. The trial court withdrew that subject from the jury, leaving the charge of negligence resting wholly on the claim that defendant negligently retained in its employ an incompetent employee, after notice of his incompetence. ■ So, the refusal to submit questions covering any other subject of alleged negligence did not prejudice the defendant, hence does not constitute error.
This question was submitted by defendant’s counsel and refused: “ Was the opening of the surface blow-off valve the proximate cause of plaintiff’s injury?” It was not claimed that the mere opening of the valve was the proximate cause of plaintiff’s injury, but that the negligent retention of the incompetent servant was such cause. If the circumstances of the case were such that the only inference that could be reasonably drawn therefrom was that, if Welk remained in defendant’s employ, he was liable to do some act, or fail in some duty, that might probably imperil the personal safety of his fellow-servants, defendant, in the light of attending circumstances, ought reasonably to have foreseen that such might probably be the result of his retention, and that what followed was a natural and probable result thereof, then the fact found in favor of the plaintiff, in answer to the question proposed, would relate back to the negligent retention of the incompetent servant as the real producing cause of the accident, and make plaintiff’s case perfect on the subject of proximate cause. The request for the question in the form- proposed must be taken as an admission by defendant that the inferences referred to would follow a find
Turning to the verdict, the answer to the first question merely found that the defendant was guilty of negligence which caused the injury. This court has repeatedly held that such a finding comes far short of determining'the proximate cause. The question has been so many times discussed that we will not go over it again at this time. In Deisenrieter v. Kraus-Merkel Malting Co., ante, p. 279, all the important cases on the subject in this court will be found cited. The precise form of the finding under discussion was condemned as insufficient in Andrews v. C., M. & St. P. R. Co. 96 Wis. 348. True, the trial court might have so. in•structed the jury as to mate such question call for a finding •of the proximate cause, but. there was a failure so to do. On the contrary, an examination of the. charge leads to the con•clusion that the trial court submitted the'case on the theory that if the jury found that the defendant was negligent and that such negligence caused the injury to the plaintiff, and plaintiff was free from contributory negligence, he was entitled to recover. The learned circuit judge said in regard to the question: “It goes to the gist of the action, and all the other questions are embraced within it.” The meaning ■of such instruction cannot be misunderstood. If it means anything, it means that all the other questions go no further than the first in determining the facts essential to plaintiff’s recovery, so far, at least, as relates to the defendant’s fault. That overlooked entirely some of the essential elements of actionable negligence. It only exists where the party whose fault causes the injury was not only negligent, but the injury was the natural and probable result of it, and the attending circumstances were such that a person of ordi
The other findings on the subject of negligence are that Welk was incompetent, that he was retained by defendant after notice of such incompetency an unreasonable length of time, and that the accident was caused by his suddenly opening the surface blow-off valve. That may be all true, and yet the bursting of the glass from such cause be such an extraordinary occurrence that it would not follow that a person of ordinary care, in the light of attending circumstances, ought reasonably to have apprehended it. Neither does it follow, under the circumstances, conclusively, that defendant ought reasonably to have apprehended that the retention of Welk would or might probably imperil the personal safety of his co-employees. Therefore, the fact of proximate cause was not fou'nd by the jury, and does not follow as a conclusion of law from the facts found, and does not appear by the undisputed evidence. Hence, the court erred in not submitting the question suggested by the defendant, or some other question, calling for a finding of this essential fact, or in not so instructing the jury in respect to the first question as to make that cover the subject. On the case as it stands, the verdict is not sufficient to sustain a judgment, accoi’ding to repeated decisions of this court.
The trial court refused to give the following instruction: “The mere fact that Welk generally was incompetent as a fireman will not authorize you to answer the first question, that the defendant was guilty of negligence; you must further find that the fireman Welk did some act which as a fireman it was improper for him to do, and which act directly and naturally caused the explosion of the glass. Unless these facts are established by a preponderance of the testimony you must answer the first question ‘ No.’ ” Also refused to instruct the jury, in substance, that, ‘unless they
It is assigned as error that the court instructed the jury regarding the first question, as follows: “An employer is bound to furnish competent employees; if he fails to do so he is liable for injuries caused'by their incompetency, unless the co-employee assumes the risk.” That, in effect, told the jury that a failure to furnish competent employees renders the employer liable, without regard to whether such failure is the result of a want of ordinary care or not. Such is not the law, and we apprehend the learned circuit judge did not intend to be so understood, but it is hard to perceive how the jury could have otherwise understood the language used. The rule is that the master must úse ordinary care and diligence in respect to employing competent servants, having regard always to the character of the particular service and the consequences that may probably result from incompetency in such service. When such care and diligence shall have been exercised and a servant is nevertheless employed who is incompetent, a resulting injury to a fellow-servant cannot legally be chargeable to the master upon the ground of neglect of duty to such injured servant. 7 Am. & Eng. Ency. of Law, 844, and cases cited.
It is further assigned as error that the court refused to set aside the verdict as against the weight of evidence. This court cannot decide whether the trial court held right or wrong on that, as an original proposition. For sufficient reasons the duty of preventing injustice through a wrong verdict is vested primarily in the trial court. From its decision, right or wrong, there is no relief under our system of jurisprudence, unless such decision be made to appear by the
By the Court.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.