140 Wis. 457 | Wis. | 1909
Lead Opinion
The appellant assigns as error: (1) The refusal of the court to give certain instructions which were requested; (2) the charge of the court under the first question in the special verdict; (3) failure of the court to give any charge in relation to the second question in the special verdict; (4) giving an erroneous definition of proximate cause; (5) receiving incompetent testimony prejudicial to the de
1. No exception was taken to' tbe refusal of the court to give tbe instructions requested, bence tbe rulings, of the trial judge in this regard cannot be considered in this court.
2. By tbe first question in' tbe special verdict tbe jury was asked: “Was tbe machinery in wbicb plaintiff was injured so located as to be dangerous to employees in tbe discharge of their duties?” Tbe court charged the jury:
“In answering this question you will consider, among other things, tbe location of tbe machinery in question with reference to where it became.reasonably necessary for employees to be situated or placed in tbe discharge of their duties in and about it, and its situation and surroundings as shown by tbe evidence.”
Tbe criticism upon tbe charge is tbe use of tbe words “among other things;” it being urged that tbe instruction permitted tbe jury to consider matters outside of tbe evidence. In answering tbe question there were a number of things that tbe jury might very properly have considered aside from tbe specific ones mentioned by tbe court, as, for instance, tbe height of tbe railing, its proximity to tbe gearing, and tbe extent to wbicb the vision was obscured by coal dust, as well as other items of evidence. Presumably tbe jury understood that tbe “other things” they might consider should be restricted to such things as were shown by tbe evidence. In tbe absence of a request to charge that extraneous matters should be excluded from consideration, we do not think any prejudicial error was committed, if it be conceded that tbe language used was not as guarded as it might have been.
3. No request was made upon tbe court to give any charge
4. Tbe definition of “proximate cause” given by tbe court was taken verbatim, from Deisenrieter v. Kraus-Merkel M. Co. 97 Wis. 279, 288, 72 N. W. 735, wbieb definition is approved in Feldschneider v. C., M. & St. P. R. Co. 122 Wis. 423, 431, 99 N. W. 1034, and in other cases, and it is undoubtedly one tbat is very generally given by trial courts. It is probable tbat counsel could improve on this definition, but it bas been so often laid down for tbe guidance of trial courts, and they bave been so frequently admonished to follow it, tbat it would hardly be consistent to bold tbat error resulted from so doing,
5. It is urged tbat tbe court erred in receiving testimony tending to show bow other servants of the defendant oiled tbe machine prior to tbe plaintiff’s employment, where they stood when oiling it, tbe condition of tbe light at tbe time of tbe injury, and tbe fact tbat tbe gearings were uncovered. It was competent for tbe plaintiff to show on tbe issue of contributory negligence any pertinent facts tending to establish ordinary care on bis part. Tbe fact tbat be oiled tbe machinery in tbe usual, customary, and ordinary way could best be established by showing bow others bad done tbe same work, and we think tbe testimony was not incompetent.
Dr. Sarazin was permitted to testify under objection tbat, assnming the statement of tbe plaintiff to be true as to bis condition, be thought there was dead bone in tbe ribs, and tbat an operation to remove tbe same would be necessary, and tbat sucb removal would weaken tbe side. It is urged tbat tbe doctor bad made no sufficient examination and bad no sufficient information concerning tbe plaintiff’s condition to qualify him to give tbe testimony complained of. Tbe evidence was based on tbe. statement made by tbe plaintiff on tbe
6. Tbe plaintiff produced a model on the trial which tbe court refused to receive in evidence because it was not correct. In bis argument to tbe jury plaintiff’s counsel stated in substance that tbe reason why defendant did not produce a model was that if one bad been produced it would bave been more unfavorable to it than that made by plaintiff. Exception was taken to such remarks. Tbe court charged tbe jury: ■“No inference adverse to tbe defendant should be drawn from tbe argument of plaintiff’s counsel, except in so far as that argument is based on testimony.” In view of this instruction and of tbe nature of tbe remarks and the probable cause •of their being made, no error resulted.
7. It is argued with much force that this court should say as a matter of law that tbe machinery in question was sufficiently fenced or guarded, and that therefore no negligence or breach of statutory duty was shown on tbe part of the defendant, and also that plaintiff was guilty of contributory negligence. These are tbe principal contentions relied on for a reversal of the judgment. Had tbe injury happened to some employee who bad no duty to perform about tbe machinery in question, the argument that plaintiff bad complied with its statutory duty to sufficiently fence or guard this machinery would be convincing. Tbe barrier was nearly three feet high and was substantial. But what might be a proper and sufficient safeguard for the ordinary employee might not be só for tbe plaintiff, who in tbe performance of bis duties was obliged to lean over the barrier and bring bis bands and other parts of bis body in close proximity to rapidly revolving gearings. Tbe plaintiff was as much entitled to bave these gearings securely guarded or fenced for bis safety as were other employees. Manifestly, a covering over tbe gearings in bis case
If we eliminate from the defense of contributory negligence-the fact that plaintiff continued in his employment a period of eleven months knowing its dangerous character, there is-nothing to be found in the evidence that would warrant a court in holding as a matter of law that plaintiff co-uld not recover because he was shown to be guilty of contributory negligence. Sec. 163Qjj, Stats. (Supp. 1906; Laws of 1905,. eh. 303), provides that the fact that an employee remains in an employment with knowledge that the employer has not sufficiently guarded or fenced dangerous machinery shall not operate as a defense to such an action as is here brought. This statute has eliminated assumption of hazard from the defense of contributory negligence in the class of cases to which it is applicable. Klotz v. Power & M. M. Co. 136 Wis. 107, 109, 116 N. W. 770; Lind v. Uniform, S. & P. Co., ante, p. 183, 120 N. W. 839. We perceive no error in submitting to the jury for consideration the question of negligence on the part of the defendant and want of ordinary care on the part of the plaintiff.
8. The plaintiff was forty-three years old at the time of his injury and was earning $2.75 per day. Such injury necessitated the amputation of his left arm close to the shoulder. His nose was broken and the injuries to his face have resulted in disfigurement. Three of his ribs were fractured and his side was badly lacerated and had not entirely healed at the time of the trial. There was some testimony given tending to show that the injury to the side is permanent, although such evidence is of an unsatisfactory character.
By the Court. — Judgment affirmed.
Dissenting Opinion
(dissenting in part). As indicated in the court’s opinion I concur with the writer thereof and Mr. Justice Dodge that the verdict is excessive. I apprehend that if we were permitted to appraise the damages as an original matter they would not reach near the jury’s figure. The idea prevails that this court should not, in any case, reverse the trial determination on such a question unless the verdict appears so out of all reason, as to indicate, clearly, that there was passion or prejudice or perversity of some sort in reaching the result.
If I were to treat the subject here according to the stated prevailing view, and it must be conceded there is support for such view in the decisions of this court, I would say the recovery is so large as to leave the suggested fatal characteristic clearly inferable.
How are we to determine that the jury in such a case were actuated by passion or prejudice? Manifestly, not, necessarily, by seeking to discover whether they acted honestly. Godfrey v. Godfrey, 127 Wis. 47, 106 N. W. 814. A person may be moved by passion or prejudice to do or not to do a particular thing and yet be free from the slightest taint of moral or legal turpitude. We cannot determine whether a
Under our defective and lamentably imperfect system in assessing damages the question, in reality, is not what is a full equivalent for the injuries in the general sense, i. e. what would one take in money to repair the injuries, but what is a reasonable reparation under all the circumstances. How much for the mere inadvertence causing the loss, considering all interested, the employer who required the sendee in order to carry on his business, the employee who needed the em-
There is no market value for pain and suffering and parts of the human body. What sum of money would one take in exchange for an arm or a leg or an eye ? Who can say with any degree of certainty what such things are worth? Who can say with that degree of certainty ordinarily necessary for a verdict? No sum of money can be named as the full equivalent for the severe mutilation of one’s body. The whole idea of a full money equivalent contemplates an impossibility. All courts really recognize that in their declared helplessness 'to deal with destructive verdicts. The real idea, after all, is that he who, by breach of duty involving actionable inadvertence, injures another in his person should, as a penalty so to speak, make good to such other reasonably his loss. The fault in such a case is not criminal. If it were even of that high degree the law would not, as a rule, punish destructively. Mere inadvertence causing personal injuries are misfortunes attributable to human infirmity; never to human intention.
The foregoing suggests, as before stated, that the assessment of damages in a case of this sort presents a practical question to be solved by sound judgment not necessarily involving an exchange of equivalents on a money basis.
Does it not seem that tested by such judgment an injury, which, though severe, is so repaired by nature as to leave the afflicted one sound in mind and body to a large degree and capable of engaging in'gainful occupations, should not be compensated to an extent which will yield him more than his previous customary income for life and leave at the end a fortune far in excess of what the average of his class ordinarily accumulates during a life of industry? Such an
We may well claim that the numerous laws, world wide, for repairing personal industrial injuries, accurately portrays the highest wisdom of our time in the light of generations of study and experience. By no one of such laws are such accidents regarded as justly entitling the injured one to compensation on the basis embodied in the verdict here. All are grounded on the idea of what an industry should reasonably contribute, under all the circumstances, to repair such unintentional injuries, the full money equivalent being regarded as impossible of ascertainment and impracticable of being rendered.
There is another side which I take this opportunity of discussing. The practice of setting aside verdicts and granting new trials to prevent a miscarriage of justice is a development from the judicial experience of ages. By the early common law it is probable there was no such practice. In time courts came to grant new trials whenever it appeared, clearly, that otherwise injustice would be done. Later the practice came to be governed by pretty well defined rules. One of them was that a verdict assessing damages in a case of this sort would' not be set aside as excessive unless it appeared that the jury were actuated by passion or prejudice. It was common to raise the question on a motion to set aside the verdict as contrary to the evidence. In many jurisdictions that particular ground for a new trial has been carried into the Code by a provision for a new trial in case of “excessive damages appearing to have been given under the influence of passion and prejudice.” That phrasing is found in most Codes. 14 Ency. PL & Pr. 159. Ours is one of the exceptions.
In some jurisdictions the particular ground for a new trial above mentioned is held to be included in the one that the
That a motion to set aside a verdict as contrary to the evidence is broad enough under the Code to include improper assessments of damages through passion or prejudice or other perversity was early held in Emmons v. Sheldon, 26 Wis. 648. The court dealt with an inadequate verdict evincing passion or prejudice. It was held, on the ground' of inadequacy evincing ignorance or perversity, to be contrary to the evidence. Our Code did not at first provide for granting a new trial for inadequacy of the verdict. The ease cited was followed in Robinson v. Waupaca, 77 Wis. 544, 546, 46 N. W. 809, and Whitney v. Milwaukee, 65 Wis. 409, 27 N. W. 89.
I am not unmindful that this court has said a verdict cannot be successfully challenged on appeal for excessiveness in the absence of a motion in the trial court on that precise ground. Sloteman v. Thomas & W. Mfg. Co. 69 Wis. 499, 34 N. W. 225; Collins v. Janesville, 99 Wis. 464, 75 N. W. 88; Howard v. Beldenville L. Co. 134 Wis. 644, 114 N. W. 1114; Duffy v. Radke, 138 Wis. 38, 119 N. W. 811. But in such instances a distinction was not drawn between mere •excessiveness and excessiveness through passion or prejudice. The former, it seems, is within the special statutory ground of fatal excessiveness, if not all such ground contemplates. I am inclined to the belief that it is the latter; that the Code-makers used the term “contrary to the evidence” in the same sense it had formerly been used, i. e. as including excessive
The idea early advanced by this court, as stated, that a motion to set aside a verdict on the ground of its being contrary to the evidence covers the defect of being characterized by passion or prejudice is found in the decisions of many states, as indicated in 14 Ency. PI. & Pr. 766, note 1. Many of such authorities déal with inadequate verdicts, but it is hardly logical to say a verdict characterized by passion or prejudice is contrary to the evidence where it is too small and not where it is too large.
I am constrained to believe the practice has fallen somewhat into confusion by failure to distinguish between a perverse verdict, relievable from at common law, and under the statute by motion to set aside as contrary to the evidence, and a merely excessive verdict, made by the Code a separate and independent ground for a new trial, one unknown at common, law.
While there are decisions of this court to the effect that to-warrant granting a new trial because the verdict is too large it must satisfactorily appear that it is the product of passion or prejudice, there are others where relief was granted, passion or prejudice not being suggested, and still others where the verdict was very materially reduced as excessive and the jury at the same time were expressly acquitted of any fault other than mere error of judgment. Such was Baker v. Madison, 62 Wis. 137, 22 N. W. 141, 583. A verdict for $6,000 was condemned as excessive, the plaintiff being permitted at his option to take judgment for $3,500. It was. contended that the court could not reverse for excessiveness, unless the damages seemed “flagrantly outrageous,” so excessive as to lead to the conclusion that the jury were actuated by “passion or prejudice.” Ancient common-law cases and
In Murray v. Buell, 74 Wis. 14, 17, 41 N. W. 1010, the impression is given that the element of passion or prejudice may be absent and the verdict yet be set aside as excessive. In somewhat contradi ctory language the court made the suggestion, but said it was unnecessary to pass upon the matter.
In Heddles v. C. & N. W. R. Co. 74 Wis. 239, 259, 42 N. W. 237, the verdict was set aside because of mere misconception of duty, misdirection of the court, passion, or prejudice, again suggesting that mere want of reasonable judgment is sufficient
The field I have discussed is very broad and very important to the administration of justice. It would require a very lengthy opinion to review all cases in this court and those elsewhere under Codes similar to ours, and demonstrate that our Code provision for a new trial for excessiveness of the verdict includes want of judgment on the part of the jury, and excludes excessiveness because of passion or prejudice or perversity of any hind, that failing- under the general head of contrary to the evidence. That was so held in Beavers v. Mo. Pac. R. Co. 47 Neb. 761, 66 N. W. 821, under a similar statute. It is otherwise ■ held in .California because the Code there contains a ground for a new trial, as follows: “Excessive damages appearing to have been given under the influence of passion or prejudice.” It is also so held in Minnesota, but the Code provision there is as follows: “Excessive or insufficient damages appearing to have been given under the influence of passion or prejudice.” Note that the language here is “for excessive or inadequate damages.”
Does it not appear quite plain that our Code-makers did not contemplate cases of improper verdicts relievable from under the general head of “contrary to the - evidence” in adding the particular ground: “For excessive or inadequate damages,” and that, misled by the common-law rules that a verdict should not be set aside fpr excessiveness unless characterized by passion or prejudice, and decisions elsewhere under a specific Code provision on the subject, the effort of our lawmakers to enlarge the grounds for relief from unjust recoveries has not been realized.
Viewing the case as indicated, that it is competent to deal with the verdict upon the ground of its being excessive regardless of passion or prejudice or perversity or any improper motive; merely because it is clearly too much: more than in reason can be justified, I cannot escape the conclusion that justice requires plaintiff to take less by at least three or four thousand dollars. I should so conclude under the severe rule which need not be applied, as we have seen. I assume the court would condemn the recovery except for the thought that it cannot be done without condemning the jury as having acted from some improper motive. I cannot think our judicial machinery is impotent to do justice between man and man in such a case without so first condemning the jury. If a verdict ia too large it is as unjust to the
In the foregoing I have not lost sight of the fact that the •court cannot properly substitute its judgment for that of the jury. Ordinarily the collective judgment of twelve jurymen •on such a subject as the just compensation due in a case of this sort is safer than that of any judge, or perhaps a bench of judges. But whether a jury exercised sound judgment, tested by whether the bounds of reason were plainly overstepped, or a proper conception of the situation was entertained, as well as whether the result is characterized by good faith, are judicial questions. In solving such the court does not invade the province of the jury.