| Wis. | Jan 30, 1906

Tbe following opinion was filed December 12, 1906:

SiebecKeb, J.

It is urged that there was no evidence showing negligence in tbe particulars alleged. Defendant claims that the accident is alleged to have occurred through tbe abnormal dropping of tbe punch, with tbe application of pressure to tbe treadle after tbe punch bad returned to its stationary position, that it then dropped unexpectedly, and thereby caused tbe injury. Plaintiff’s counsel contest tbis *30claim in tbeir oral argument tbougb tlieir brief seems to go upon tbis theory. The question must be settled by the facts actually disclosed by tbe evidence. The record shows that plaintiff is the only person who speaks on this subject, and his statement is directly to the effect that the abnormal action of the machine at the time of the accident consisted in the second revolution of the crank shaft and a second dropping of the punch, without its automatically assuming a stationary position between the drops after the pressure had been removed from the treadle. Upon this basis of fact the question arises, Does the proof tend to show actionable negligence ? Defendant contends that it does not, upon the ground that the only evidence of negligence presented is that of the alleged abnormal operation of the machine at the time of and at times previous to the accident. A number of persons testified that from several months to some days before the accident, while they had operated the punch or had seen it operated by others, it had unexpectedly failed 'in its automatic and regular action to take the normal stationary position after removal of pressure from the treadle, and had made one or more continuous abnormal drops. There is evidence tending to show that the shop foreman’s attention had been called repeatedly to this abnormal action before the accident, and that he sought to remedy it by readjustment of its operating parts, and that he assured the person manipulating the press that it was in a proper condition for use. Considerable evidence was adduced to the effect that this press was of standard and approved design, and was in common and general use by manufacturers for purposes like to those for which this one was being used by defendant; that, so far as defendant’s agents and servants knew, ’it operated properly before •and from and after the time of the accident. It is urged that this state of the evidence of abnormal action of the machine can only be the basis of an inference tending to show an insufficiency in the construction and repair of the machine as the *31producing cause of tbe injury complained of; tbat tbis was conclusively rebutted by tbe evidence showing tbe machine was free from all discoverable defects; and tbat therefore no grounds exist on which the jury could find that any defect existed in the machine which the defendant in the exercise of ordinary care ought to have discovered. The rule of law invoked by defendant as controlling upon this branch of the case has been observed and adhered to in numerous decisions of this court. In Vorbrich v. Geuder & P. Mfg. Co. 96 Wis. 277" court="Wis." date_filed="1897-05-21" href="https://app.midpage.ai/document/vorbrich-v-geuder--paeschke-manufacturing-co-8185550?utm_source=webapp" opinion_id="8185550">96 Wis. 277, 71 N. W. 434, speaking of this subject, the court said:

“Undisputed proof of freedom of the machine from all discoverable defects, either in construction or repair, effectually overcomes any inference or presumption arising from the happening of the accident, so as to leave no question in that regard for the jury.”

See, also, cases cited, and Groth v. Thomann, 110 Wis. 488" court="Wis." date_filed="1901-05-21" href="https://app.midpage.ai/document/groth-v-thomann-8186991?utm_source=webapp" opinion_id="8186991">110 Wis. 488, 86 N. W. 178; Klitzke v. Webb, 120 Wis. 254, 97 N.W. 901" court="Wis." date_filed="1904-01-12" href="https://app.midpage.ai/document/klitzke-v-webb-8187822?utm_source=webapp" opinion_id="8187822">97 N. W. 901.

Plaintiff produced evidence tending to show that the operation of the clutch and trigger spring was interfered with by the gumming of these parts; that there was a wearing and loosening of the set-screw in the rocker arm holding the treadle rod; that this screw was not fastened by a lock nut; and that the treadle latch operated defectively, and claims that these defects in the construction and repair of the press were the cause of the accident; and that defendant could have discovered them in the exercise of ordinary care. It is obvious that the gumming could in no way cause the abnormal dropping of the punch, because its only effect would be to prevent engagement of the clutch and fly wheel; until this occurred the punch would be stationary. The specified abnormal action of the punch must result from a failure to disengage the clutch and fly wheel, and to this the gumming could in no way contribute. The theory that the absence of the lock nut on the set-screw, and the way the tréadle latch was fastened up to prevent it from holding down the treadle, thereby causing *32the punch to continue in action until it was removed, could in any way have caused the abnormal action complained of, is not sustained by the evidence. The evidence on these points would not reasonably admit of an inference that these alleged defects caused the abnormal action. Such an inference is mere conjecture and falls far short of the reasonable certainty required to show the real cause of the accident. As to these alleged grounds of negligence the court should have instructed the jury, as requested, that the evidence bearing on them was not sufficient to sustain a finding that the machine was defective, and that no want of ordinary care could be imputed to defendant with respect thereto as the cause of the injury. The failure to give the requested instructions or their equivalent was error. It permitted the jury to predicate their finding upon any or all of these phases of the evidence, and therefore renders the result of the trial inconclusive, in that the jury may have founded their finding of negligence upon a ground not supported by the evidence. McClarney v. C., M. & St. P. R. Co. 80 Wis. 277" court="Wis." date_filed="1891-10-20" href="https://app.midpage.ai/document/mcclarney-v-chicago-milwaukee--st-paul-railway-co-8183763?utm_source=webapp" opinion_id="8183763">80 Wis. 277, 49 N. W. 963; Davis v. C., M. & St. P. R. Co. 93 Wis. 470" court="Wis." date_filed="1896-06-19" href="https://app.midpage.ai/document/davis-v-chicago-milwaukee--st-paul-railway-co-8185238?utm_source=webapp" opinion_id="8185238">93 Wis. 470, 67 N. W. 16, 1132.

The remaining alleged specific defect of the machine pertains to the worn and loose condition of the set-screw and treadle rod. There is evidence tending to sustain the claim that these conditions existed at the time of the accident. It is strenuously urged by the defendant that there is no explanation as to how these conditions could cause the abnormal action of the punch. We axe led to the conclusion that it sufficiently appears from the evidence of witnesses qualified to speak on the subject that the looseness of the set-screw and the slipping of the rod in the rocker arm, when the operating parts of the machine were engaged in tripping and automatically arresting the punch and holding it in its stationary position, might cause the failure of the latch to return to its position and to engage the trigger at its first revolution, and thus by permitting two or more revolutions of the crank shaft *33cause tbe unexpected drop of tbe punch after tbe pressure on tbe treadle bad been removed. Some of tbe defendant’s experts admitted that if tbe latcb failed to return quickly tbis abnormal action might follow. Since it was made sufficiently apparent that tbe slipping of tbe treadle rod in tbe rocker arm, on account of tbe imperfect set-screw, might result in not returning tbe latch to such a position as to engage tbe trigger, tbis question should have been submitted to the jury upon the conflicting evidence on tbe subject, and tbe court should have submitted tbe inquiry of defendant’s negligence upon this ground.

An exception is urged to tbe refusal of tbe court to submit questions covering different phases of tbe evidence concerning tbe nature of tbe defects, if tbe machine was found defective in construction or repair. We think they were properly refused, because they required tbe jury, in answering tbe general and proper questions respecting tbe alleged negligence of defendant, to state the specific grounds for their findings. Mauch v. Hartford, 112 Wis. 40" court="Wis." date_filed="1901-11-05" href="https://app.midpage.ai/document/mauch-v-city-of-hartford-8187107?utm_source=webapp" opinion_id="8187107">112 Wis. 40, 87 N. W. 816, and cases cited.

Error is assigned upon instructions given defining the measure of tbe master’s duty. Tbis duty requires that be exercise reasonable care in furnishing reasonably safe instruments, and that be exercise a like degree of care in making repairs: Another exception of tbis nature pertains to tbe definition of ordinary care of tbe defendant as such care as is exercised by ordinarily careful and prudent persons of plaintiff’s áge, intelligence, experience, and knowledge^ Tbe court manifestly misapplied tbis definition to tbe defendant, when it was intended to refer to plaintiff. Tbe error is not likely to occur on another trial.

Tbe exceptions to rulings on evidence relate mainly to infringements on tbe rights of cross-examination. Since'a new trial must be granted, discussion of them is unnecessary. Tbe exceptions do not present questions which show a mistaken *34view of tbe principles, but relate to the application of well-established principles in the particulars suggested. The cross-examinations by defendant appear' to have been too much restricted. A party should not be deprived of this right by so limiting the scope of the cross-examination that the value and weight of the evidence given on direct examination may not be fully tested.

It is further contended that counsel was permitted to indulge in improper argument to the jury, over defendant’s objection. It appears that plaintiff 'requested a view of the machine at defendant’s shops, and that this was assented to by the defendant; that the court, the jury, and counsel for both parties viewed and inspected the machine in the shop, and that it was operated at plaintiff’s request in their presence; that plaintiff did not request the production of the machine or of any of its parts in court; and that defendant made no offer of it or of any of its parts as an exhibit during the trial. The machine was installed and in use in the factory; its size and weight evidently made it difficult to transport, and detachment of its parts would'have prevented its use. Under these circumstances plaintiff’s counsel argued that such absence of the machine and its detachable parts was evidence tending to show the defendant guilty of the negligence ^charged. The court upon objection to such comment ruled •that defendant had the right but was not compelled to produce the machine, and that counsel justifiably argued that •.such nonproduction tended to refute defendant’s claim that the machine was free from all discoverable defects. The seri>ous effect of such comments before a jury is perfectly obvious. Was it proper argument under the circumstances % We cannot regard it as within the field of legitimate argument. It is a charge that defendant withheld evidence which would have supported plaintiff’s claim and have refuted defendant’s ■claim concerning the condition of the machine. Such an imputation was refuted by defendant’s conduct in freely sub*35mitting to a full inspection of the machine and the operation ■of it in the presence of the jury and the opposite party and his counsel. It is not suggested that plaintiff was, in any particular, deprived of the fullest opportunity to examine the machine; nor did he ask that it or any of its parts be produced by defendant as an exhibit upon the trial It appears that defendant had done everything within reasonable requirement to .expose the machine to the view of the court and the jury as evidence of its condition at the time of the accident, and this conduct fully rebutted any presumption that it withheld the machine or any of its parts as evidence from sinister motives. The proceeding complained of was highly prejudicial under the circumstances, and constituted reversible error. MacCarthy v. Whitcomb, 110 Wis. 113" court="Wis." date_filed="1901-04-09" href="https://app.midpage.ai/document/maccarthy-v-whitcomb-8186943?utm_source=webapp" opinion_id="8186943">110 Wis. 113, 85 N. W. 707, and cases cited; 1 Wigmore, Evidence, § 285 et seq.; Bates v. Morris, 101 Ala. 282" court="Ala." date_filed="1893-11-15" href="https://app.midpage.ai/document/bates-v-morris-6515463?utm_source=webapp" opinion_id="6515463">101 Ala. 282, 13 South. 138; Crawford v. State, 112 Ala. 1" court="Ala." date_filed="1895-11-15" href="https://app.midpage.ai/document/crawford-v-state-6516815?utm_source=webapp" opinion_id="6516815">112 Ala. 1, 21 South. 214.

Error is assigned-upon the refusal of the court to direct a verdict in defendant’s favor upon the ground that under the undisputed facts it appeared that plaintiff had assumed the risk of this injury as incident to his employment and that he was guilty of contributory negligence. Upon this question the justices are equally divided in opinion. In accordance with the established practice in the treatment of such a situation no opinion will be filed on this question.

By the Court. — Judgment reversed, and the action remanded for a new trial.

A motion for a rehearing was denied January 30,1906.