90 Wis. 83 | Wis. | 1895
1. Tbe question to be considered is whether there was sufficient evidence to go to the jury to justify a finding that the negligence of the defendant caused the death of the plaintiffs intestate, and whether, upon the entire case, there was sufficient evidence to sustain a verdict for the plaintiff. It is well settled that a mere scintilla of evidence or mere surmise of negligence on the part of the defendant would not be sufficient, and that the jury are not to be permitted to guess at or conjecture a result, and thus arrive at a verdict that must be founded on and sustained by competent evidence; and it is the duty of the court to grant a peremptory instruction or nonsuit where the state of .the evidence is such that it can clearly see that it would be the duty of the court to set aside the verdict if rendered in favor of the party having the burden of proof. Thomp. Trials, §§ 2241, 2249, and cases cited. Negligence is an inference to be drawn from the facts and circumstances disclosed by the evidence, and “ when such facts and circumstances, though undisputed, are ambiguous and of such a nature that reasonable men, unaffected by bias or prejudice, may fairly disagree as to the inference or conclusion to be drawn from them, the question should be submitted to the jury; but when the facts and circumstances are not ambiguous, and there is no room for two honest and apparently reasonable conclusions, then the judge may take the case from the jury.”1 But, in order to justify this course, the evidence or want of evidence must be clear and decisive. Kaples v. Orth, 61 Wis. 533, and cases cited; Valin v. M. & N. R. Co. 82 Wis. 6; Hart v. West Side R. Co. 86 Wis. 484.
Peterson, the deceased, was an experienced operative, and had for some three years been accustomed to the duties of edger which the defendant hired him to perform. These duties involved skill, experience, and judgment, and a. knowledge and familiarity with the machine with which he was working, and these it is presumed he possessed. He had
Where the defect or danger is open and obvious, knowledge of it on the part of the employee will be presumed. In such cases the employer may be said to be guilty of negligence in keeping his premises or machinery in a dangerous condition, and that the servant is guilty of negligence in accepting the service or continuing in it, and it becomes equivalent to contributory negligence on his part. Whittaker’s Smith, Keg. 398. An assumption of risk is in fact regarded as a form of contributory negligence. Darcey v. Farmers’ L. Co. 87 Wis. 249.
Whatever of danger or peril there was in operating the
It would seem that the situation would have suggested to a man of ordinary intelligence that the operation of the mill under such circumstances was fraught with danger, not only by reason of his inability to properly work around the machinery, but from the consequences likely to ensue to him by reason of the same inability on the part of others working in immediate connection with him. A casual glance at the situation on the morning of the accident was sufficient, to admonish the deceased of the dangers confronting him in attempting to go on in his employment under then existing-conditions. It was the duty of the employer to take prompt measures to render the operation of the mill reasonably safe and convenient, and it was the -right and duty of the de
2. There seems to be a failure of proof to show that the negligence and default relied on were the real and efficient cause of the death of the plaintiff’s intestate. There is evidence to show that the board would not havé gone back unless it got pinched on the saw; that this would occur if the board, before entirely passing the saws, was swung around so that it cramped on the saw; and also that a board at times will get cramped on the saw and go back, because the saw in its operations may spring to one side and then spring back to its normal position. If the power of the pressure and fluted rollers failed to carry the board through, so that it stopped, they would not have any tendency to force it back against the saws, as they revolve from, and so as to carry the board away from, the saws, unless some one meddled with the board, or some force intervened to turn it aside so that it would cramp on the saw and be sawed back until it rode the saw. There is nothing in the evidence, so far as we are able to discover, tending to show that the pressure .-and fluted rollers, on the morning in question, or when the accident occurred, had failed in any degree to perform their proper functions, and no evidence even to show that boards ■came through them slower than usual. On the contrary, the’
For these reasons, we think that the direction of the circuit court to the jury was correct.
By the Court.— The judgment of the circuit court is affirmed.