162 Wis. 139 | Wis. | 1916
When this case was here on appeal from an order overruling a demurrer to tbe complaint tbis court beld that the complaint stated a good cause of action and did not sbow contributory negligence of plaintiff. Murphy v. Interlake P. & P. Co. 156 Wis. 9, 145 N. W. 193. Tbe main question before us now is wbetber there is sufficient evidence to support tbe findings of tbe jury. It is insisted that no negligence of defendant was shown and that tbe evidence shows as matter of law that tbe plaintiff was guilty of contributory negligence.
Under tbe express provisions of tbe statute tbe defendant was bound to furnish a safe place to work, as free from danger as tbe nature of tbe employment would reasonably permit. Secs. 2394-48, 2394-49, Stats.; Sparrow v. Menasha P. Co. 154 Wis. 459, 143 N. W. 317; Tallman v. Chippewa S. Co. 155 Wis. 36, 143 N. W. 1054. Tbe negligence charged in tbe complaint is that tbe defendant permitted tbe platform or floor of tbe car upon which tbe employees were required to work to be and remain in a defective condition By reason of tbe floor of said car being uneven and containing depressions and boles which were at tbe time of tbe injury filled with ice and thereby dangerous; and that defendant negligently permitted water used on said crane and platform of said car to run over and upon tbe floor of said car and platform thereof and freeze thereon; that while plaintiff was passing onto said crane car in tbe discharge of bis duties, and because of tbe defects and unsafe condition of the car, be lost bis footing and fell, receiving the injuries , complained of. Tbe allegations of the complaint are sufficient to charge tbe defendant under tbe statute and authorities referred to. Murphy v. Interlake P. & P. Co., supra. But it is contended that tbe evidence does not support tbe al
It is also strenuously insisted by counsel for appellant that the evidence shows as matter of law that plaintiff was guilty of contributory negligence. The jury found against the contention of counsel on this point and the court below sustained the finding. We think the finding of the jury is supported by sufficient evidence, therefore cannot be disturbed. The evidence shows that the plaintiff went the usual and customary way in passing from the flat car onto the crane car. It is argued by appellant that the distance between the flat car and crane car was four feet and that it is unbelievable that a man could step over a four-foot space. But there is evidence that the spaee was much less than four feet, viz. between two and one-half and three feet.
The defense of assumption of risk was abolished by the statute. Sec. 2394-1, Stats.; Murphy v. Interlake P. & P. Co. 156 Wis. 9, 145 N. W. 193.
It is also contended that the court erred in answering question No. 2. It is said that there was sufficient conflict in the evidence on the point to require submission to the jury. We think the evidence is practically undisputed that it was the custom of employees in the discharge of their duties to pass over the crane car on their way to the tank when necessity required the taking on of water. We cannot say that the court below was wrong in answering the second question.
It is also assigned as error that question No. 4 should not have been submitted, and that it was error to amend it. It seems that after the verdict was returned the court changed the word “or” to “as” in the fifth line of the question so as to make it read “as the circumstances of employment would reasonably permit” instead of “or the circumstances of employment would reasonably'permit.” The question was immaterial and need not have been submitted. But neither1' the submission nor the change was prejudicial. The verdict was complete without this question.. The cause of action is based upon a breach of statutory duty. Sparrow v. Menasha P. Co. 154 Wis. 459, 143 N. W. 317; Murphy v. Interlake P. & P. Co. 156 Wis. 9, 145 N. W. 193.
Some other errors are assigned and discussed by counsel for appellant, but we do not regard them of sufficient importance to call for treatment. We have examined with care the record and find no prejudicial error.
By the Court. — The judgment is affirmed..