174 Wis. 377 | Wis. | 1921
Lead Opinion
The main contention made here is that the defendant company was not guilty of negligence.
The verdict of . the jury with respect to negligence is as follows: That there was an unusual volume of steam emitted into the street from the defendant’s engine or apparatus at the time or. just prior to the plaintiff’s injuries, and that the defendant failed to exercise ordinary care in permitting the steam to be so emitted into the street. It appeared without dispute that the defendant company was engaged in the doing of public work and that the engine was lawfully in the place where it was situated. The contention of defendant is that there was no evidence which shows that the engine, being lawfully in the street, was operated in an unusual or negligent manner, and that the finding of the jury in that respect cannot be sustained and is without credible evidence to support it. It appears from the evidence that the steam was emitted from the engine which was used to operate a hoisting device by means of an exhaust pipe which extended on the west side of the construction house horizontally about one foot above the ground and into the portion of the street used for traffic. The unoccupied portion of the
It is contended by the defendant that the jury did not find that the negligence of the defendant consisted in the manner in which the plant was arranged and constructed, but rather in the manner in which it was used, there being no evidence that it was used or operated in a negligent manner; that the evidence does not support the verdict. The negligence alleged in the complaint is as to the manner of construction and arrangement, and when the jury therefore found that- the defendant was negligent in permitting the steam to be so emitted into the street, it found a fact which related to the arrangement and construction of the plant as alleged in the complaint.
It is further contended that the act of Labinski in operating his automobile upon the highway under the circumstances was an intervening cause and broke the causal connection between the defendant’s act and the injuries sustained by the plaintiff. It being established that the defendant was guilty of negligence in operating the plant in the manner in which it was constructed so as to make travel upon the public ' highway dangerous, the negligence of Labinski, if any, and that of the defendant company concurred in causing the injuries complained of. We think the cpiestions as to the contributory negligence of the plaintiff and the proximate cause of plaintiff’s injuries were properly for the jury and their determination is conclusive.
By the Court. — Judgment affirmed.
Dissenting Opinion
(dissenting). While the complaint alleged, among other things, negligence and carelessness in the erection of the boiler house, yet the only question submitted to the jury as to defendant’s negligence was the
The judgment in favor of plaintiff is now being supported on the theory that there was a negligent construction and method of operation of the boiler from which the cloud of steam came at the time of plaintiff’s injury. This appears to be a substantially different question from the one answered by the jury. The unusual volume of steam referred to in the first question in the special verdict evidently intended to cover some negligence in the immediate operation of the plant at the time of the injury and not a continuing defect in construction. The question, therefore, upon which the judgment is now predicated by the majority opinion is not the one upon which the defendant was adjudged negligent by the jury. For that reason I think there should have been a new trial rather than an affirmance of the judgment.