140 Wis. 657 | Wis. | 1909
In this action for personal injury to plaintiff caused by the alleged negligence of defendant the jury on January 10, 1907, returned a special verdict by which they found the defendant guilty of negligence which was the proximate cause of plaintiff’s injury, and assessed plaintiff’s damages at $5,000. But they further answered concerning the plaintiff’s contributory negligence and assumption of risk as follows:
“Did the plaintiff know and appreciate, or in the exercise of ordinary care ought he to have known and appreciated, at the time when defendant put him to work with said ripsaw, the dangers incident to working with said ripsaw ? A. Yes.
“Did the plaintiff know, or should he have known in the exercise of ordinary care, at the time of his injury, that slivers were liable to be thrown toward him by said ripsaw? A. Yes.
“Ought the plaintiff in the exercise of ordinary care to have reasonably anticipated such an injury as occurred to him at the time and place of the injury to him ? A. Yes.”
After the cause was remanded from this court the defendant filed an affidavit of prejudice against the judge of the superior court, and thereupon the parties joined in a stipulation that the present attorneys for appellant be substituted as attorneys and that the place of trial of the action be changed to the circuit court for Lincoln county, and upon such stipulation the superior court ordered this change on February 17, 1909, and also' made an order substituting for defendant’s attorneys the present attorneys for appellant. In the circuit court the cause was tried for the third time, and the jury returned a special verdict in which they found the defendant
On April 22, 1909, the defendant proposed a bill of exceptions relative to the first trial of the action. This bill of exceptions last mentioned was settled, by Judge Helms of the ■superior court on May 10, 1909, after the last verdict in the circuit court. Defendant then moved before' the circuit judge on the record in the action and on such bill of exceptions to vacate and set aside the order of Judge Helms of March 29,1901, which order set aside the first verdict of January 10, 1907, and to reinstate such verdict and for judgment for the defendant thereon; also for judgment in defendant’s favor on the undisputed evidence on the last trial notwithstanding the last verdict, to change certain answers in' the last verdict, and, finally, for a new trial for errors occurring during the last trial and because of excessive damages. 'These motions were all denied, and on motion of the plaintiff the bill of exceptions settled by Judge Helms was stricken from the files and judgment granted the plaintiff on the last verdict on condition he remit $1,000 from the amount of the verdict, which was done, whereupon judgment was rendered for the plaintiff.
Errors are assigned in striking the bill of exceptions of the first trial from the record and in refusing to vacate Judge Helms’s order of March 29, 1907, and in refusing to reinstate the first verdict and grant judgment for the defendant thereon; in denying defendant’s motion for judgment not
The judge of the superior court might properly have entered judgment for the defendant upon the first verdict. Campshure v. Standard Mfg. Co. 137 Wis. 155, 118 N. W. 633; Monte v. Wausau P. M. Co. 132 Wis. 205, 111 N. W. 1114; Coolidge v. Hallauer, 126 Wis. 244, 105 N. W. 568; Meyer v. Milwaukee E. r. & L. Co. 116 Wis. 336, 93 N. W. 6; Helmke v. Thilmany, 107 Wis. 216, 83 N. W. 360. But. he did not do so, and although his written opinion upon motion to set aside that verdict indicates that he considered the verdict insufficient, yet in his order setting it aside he does so-expressly upon the ground that a material issue of fact covering the contributory negligence of the plaintiff was not submitted to the jury, and for the further reason that he was not satisfied with the conduct of the trial and the instructions as-a whole in submitting the case to the jury. This order followed the opinion and represents the later more authentic and official evidence of the grounds upon which the verdict was set aside. The defendant neglected to appeal from this order-granting a new trial, but appealed to this court from a like order made by the superior court at the end of the second trial. It could have appealed from both orders, but omitted to-do so. Sec. 3049, Stats. (1898). When the cause was determined by this court affirming the order of the superior court granting a new trial after the second trial, it was conclusively adjudicated that the plaintiff was entitled to a new trial and that a new trial must follow that order. After this adjudication the defendant could not be permitted to say that there should be no new trial in the action because of something which he failed to present to this court. Ean v. C., M. & St. P. R. Co. 101 Wis. 166, 76 N. W. 329, and cases; Halsey v. Wau
With reference to the last trial, th,e special verdict having by the first three answers found three grounds of actionable negligence, the answer to the fourth question established that such negligence was the proximate cause of plaintiff’s injuries. The verdict was quite similar to .that in the case of Roedler v. C., M. & St. P. R. Co. 129 Wis. 270, 109 N. W. 88, and Glettler v. Sheboygan L., P. & R. Co. 130 Wis. 137, 109 N. W. 973, in this respect. See, however, Peck v. Baraboo, 141 Wis. 48, 122 N. W. 740, with reference to the requisites of a special verdict when submitted in this form.
It was shown against the objection of appellant that after tbe accident in question tbe saw was equipped with a splitter. Eut tbe defendant first offered a witness who testified that a splitter could not have been fastened to tbe table and main-
Upon the claim that the damages awarded, after having been reduced by the trial judge from $6,200 to $5,200, are still excessive, appellant submits that the plaintiff was a laboring man forty-three years of age who lost an eye by the accident, had hospital and medical expenses of only $95, and his earning capacity was not impaired by the injury. The plaintiff offered no medical testimony and the defendant none bearing upon the extent of plaintiff’s injuries. But it appears from plaintiff’s evidence that the injury was a very painful one, consisting in a sliver being driven through the eyelid and deep into the eye, of the operation for the removal' of the eye and of the difficulty and inconvenience from dust and suppuration which follows the loss of the eye, and of im
By the Court. — Judgment affirmed.