191 Wis. 323 | Wis. | 1926
The appellant company by its cross-complaint, which was sustained in 185 Wis. 226, 201 N. W. 393, asserts that it was the duty of the railway company to in
Plaintiff’s injury was proximately caused by the conjunction of two acts for both of which the Pawling & Har-nischfeger Company was alone responsible. First, the company left the gondola car in such unsafe condition that timbers were liable to fall from it in the course of switching movements; and second, the company thereafter gave switching orders which necessitated the movement of the car while it was in this unsafe condition.' After the Pawling & Har-nischfeger Company had put the load of the car in this unsafe condition, it was the duty of that company to warn the plaintiff of the unsafe condition of the car when it gave him orders which necessitated the movement of the car.
There is no proof that would warrant a finding that the railway company failed to exercise ordinary care with reference to giving warning. The railway inspector testified that it was not his duty to report the removal of the stake or the condition of the load of the car because the car was at the platform where it was to be unloaded and the inspector had no reason to believe that the movement of the gondola car would take place before that car was unloaded, although he knew that the gondola car must be moved when the machinery car was taken out of the plant. There is no proof to the contrary.
The proof sustains the finding of the jury that the failure of the Pawling & Harnischfeger Company to give warning of the unsafe condition of the gondola car was the proximate cause of the plaintiff’s injuries. The proof also es
' ■ 2. The proof does not warrant the finding that plaintiff’s injuries were caused by his own want of ordinary care. The evidence supports the finding of the jury that the unsafe condition of the car was not so obvious as to naturally attract plaintiff’s attention. The plaintiff had a right to rely upon the practice by which industries placed some kind of signal or card upon cars that were not to be moved. Plaintiff knew that the employees of the Pawling & Har-nischfeger Company who gave directions as to the movement of cars within its plant had in the past reported to him the cars on the tracks in the plant which were not safe to be moved. Knowledge of these facts, coupled with the absence of all warning, together with the finding of fact by the jury that the unsafe condition was not so obvious as naturally to attract attention, leads to the conclusion that the plaintiff was not guilty of contributory negligence in not discovering the unsafe condition of the load on the car before he was injured.
3. The plaintiff was given hospital and medical care by the railway company without expense to himself. In submitting the question of damages to the jury the learned trial judge inadvertently told the jury that they might include in the sum assessed as damages the amount which the plaintiff had expended for medical and surgical care, treatment, and nursing. The proof failed to show any such expenditure. .The court instructed the jury that they could not allow any element of damage unless such element was established by a preponderance of the evidence to a reasonable certainty. It seems to be conceded, although not es
Thereafter plaintiff filed a formal written document by which he “remits and waives the amount of one thousand dollars ($1,000) damages found by the jury in the above entitled action and consents to the entry of judgment for the sum of twelve thousand five hundred dollars ($12,500),” This action on the part of the plaintiff foreclosed his right to ask a review of this provision of the judgment. Plaintiff cannot now be heard to question the very provision of the judgment which was inserted because of his express consent.
By the Court. — Judgment affirmed.