130 Wis. 525 | Wis. | 1907

Siebecker, J.

Appellant urges an exception to the court’s instruction pertaining to appellant’s duty of furnishing respondent a reasonably safe place to perform his duties as a servant. The instruction is criticised as not submitting to the jury appellant’s measure of duty in this respect by informing the jury “that it is the duty of [appellant] to use ordinary care in constructing a reasonably safe place,” and in omitting to direct them that such duty is an absolute one and is not dependent on the degree of care exercised by the master in performing it. The rule contended for is unquestionably *530correct. Howard v. Beldenville L. Co. 129 Wis. 98, 108 N. W. 48. Whether the court prejudicially erred in the instruction given need not be considered in view of our conclusion in the case. The instruction complained of attempted to inform the jury of the defendant’s duty as to furnishing a reasonably safe place for plaintiff to perform his duties as defendant’s servant, and they were to determine from the evidence adduced whether defendant had failed, as charged in the complaint, to perform this duty to plaintiff. Submission of this inquiry to> the jury is required only if there be credible evidence in the case that would justify the jury in drawing the inference that defendant, when the accident occurred, either had or had not performed its duty to plaintiff of furnishing him a reasonably safe place to do his work. If the evidence permits of no other inference than that defendant failed in this duty to plaintiff, it devolved on the court to determine that question as matter of law, leaving nothing for the jury to pass upon in respect to it. Under such a state of the evidence, submission of the issue to the jury under erroneous instructions is immaterial error, because it did not affect the rights of the parties arising from such undisputed state of the evidence. We are persuaded that there can be but one inference from all the credible evidence before us respecting defendant’s neglect to furnish plaintiff a reasonably safe place to work. The facts and circumstances bearing on this question all point one way, namely, that the scaffolding was so defectively constructed that it was not a reasonably safe place for plaintiff to perform the duties assigned him. From the foregoing statement of facts it appears that defendant furnished this scaffolding for plaintiff’s use in building the walls of the new structure, and that the weight of his body alone caused it immediately to collapse. There is nothing to show but that he used it in a proper and ordinary way; nothing was done nor did anything take place which should cause it to collapse aside from the fact that it was not sufficiently strong to *531support plaintiff. The physical facts surrounding the accident are clear and undisputed, and clearly tend to show that the falling of the structure must have resulted from some defect in its construction. Erom these facts no other inference can he drawn than that the defendant did not furnish plaintiff a reasonably safe place to work. Spaulding v. C. & N. W. R. Co. 33 Wis. 582; Cummings v. Nat. F. Co. 60 Wis. 603, 18 N. W. 742, 20 N. W. 665; Carroll v. C., B. & N. R. Co. 99 Wis. 399, 75 N. W. 176. This situation called upon the court to declare, as matter of law, that defendant was guilty •of negligence as charged hy the plaintiff, and it left nothing for submission to the jury as to this issue of the case. The jury haying no question of fact to ascertain upon this issue, it becomes immaterial what instructions were actually submitted respecting it, since the verdict is in harmony with the fact.

It is urged that the plaintiff was guilty of a want of ordinary care in using the scaffolding. The argument is made that he knew, or in the exercise of ordinary care ought to have known, that no footlock hole had been left for the support of the westerly footlock, and that this fact imposed on him the •duty to examine the structure as to its sufficiency and safety-before going onto it, and that, having failed to do so, he assumed the risk incident to its use as constructed. The evidence is uncontradicted that plaintiff did not in fact observe •or know how the footlocks were placed or supported. The claim that, since he was working on the wall near the scaffolding, he could not avoid observing that there was no footlock hole for the support of the westerly footlock, and that he therefore, in the exercise of ordinary care, was required to inform himself how it was in fact supported, and that such inspection would have disclosed to him any defects in the construction of the structure, is not sustained. The evidence does not clearly disclose that he was informed that no footlock hole had been provided for the support of the westerly footlock, nor *532does tbe evidence clearly support the inference that he observed how the. carpenters supported it, nor does it appear that he was otherwise informed how the carpenters supported or constructed any part of it. The evidence tends to show that he assumed that it was properly constructed and reasonably safe. Under the facts and circumstances we discover no grounds in the evidence for the contention that plaintiff was guilty of contributory negligence as matter of law in the respects claimed, or that he assumed the risk of the danger incident to the collapse of the structure. The question was properly submitted to the jury for determination.

An exception is urged to the use of the word “fair” in the phrase of the instruction: “The burden of proof is upon the plaintiff to satisfy you by a fair preponderance of the evidence.” As held in McKeon v. C., M. & St. P. R. Co. 94 Wis. 477, 487, 69 N. W. 175, thve use of the word “fair” in such connection, with a direction to tire jury that they must be satisfied of the existence of the fact referred to, is not misleading and therefore not prejudicial. Curran v. A. H. Stange Co. 98 Wis. 598, 74 N. W. 377.

It is contended that, in view of plaintiff’s injuries, his age, and his previous earning capacity, the amount of damages awarded is excessive, and that it shows that the jury were improperly influenced by passion and prejudice, in determining this question. The extent of his injuries has been set out in the foregoing statement of facts. That they were accompanied by severe pain and suffering is without question. It is apparent to a reasonable certainty that his injuries will cause him pain and suffering in the future, that he will require extra personal care and attention on account of them, and that he is practically disabled from pursuing his occupation. These elements of injury, the actual loss of his leg, the injured condition of the other leg and arm, and the resultant nervous condition persuade us that it cannot be said that the damages allowed are so large as to warrant the court in hold*533ing that the jury improperly allowed them. The verdict must stand.

We have examined the exceptions taken to the remarks of counsel, and find that the court instructed the jury properly to the "effect that the, remarks so excepted to must be disregarded by them in their determination of the questions submitted. Under the circumstances we are of opinion that no prejudicial effect could have resulted from them.

No prejudicial error is discoverable in the record.

By the Court. — Judgment affirmed.