*1 337 before the court it is clear that the court In case now its discretion but exercised that dis- not did not abuse cretion on the with patient familiarity basis protracted to the entire There is before this court proceedings. nothing that the fees the executor and are indicate allowed attorney There their made excessive. is much to show that task was and difficult. onerous unusually items in the
As to the other account which the appellant now, is barren of record objects any proper objection or of that make their to them evidence would allowance improper.
Therefore, the order final account of allowing de bonis non and entered therein are administrator judgment affirmed. affirmed.
By -Judgment Court.-— Heating v. Brozek Appellant, Raszeja, & Sheet Metal Corporation another, Respondents. 27, 1964.
September 30 October *4 For the there appellant were briefs by Previant Goldberg, Milwaukee, & Uelmen of and oral argument Albert by J. Goldberg.
For the there respondents was a brief Moore & Moore Milwaukee, and oral argument by Raymond J. Moore. The plaintiff contends that it was error to Beilfuss, J. submit questions as to contributory and cause on plaintiff and that if he was guilty contribu- tory it could not have been as great contributing factor to his injuries as the causal defendants. He asks for a new trial in the interests of justice.
342 the
Contributory Negligence of Plaintiff. of the and the The first five verdict special jury’s questions answers are as follows: and Kenneth No. 1: Donovan Nelson E. Were
“Question in the truck Roberts in the the crates unloading negligent the time ? Yes. at Answer: place question 1 If answer to is No. 2: No.
“Question your Question ‘Yes’, a then answer this Was such question: negligence cause of the Answer: Yes. plaintiff’s injury? No. 3: the plaintiff, Stanley Raszeja, Was
“Question in the at in the of the crates truck negligent unloading time Yes. ? Answer: question place is No. 4: If answer to No. 3 your Question
“Question ‘Yes’, then this a answer Was such question: negligence cause of the Answer: Yes. injury? plaintiff’s No. 5: If answer to all of the your
“Question preceding ‘Yes’, is then answer this questions question: Taking tíre combined which as negligence produced injury 100%, of such is attributable what to: percentage negligence Donovan Nelson and Kenneth E. An- Roberts? “(a) : 40. swer Plaintiff, Answer: 60.”
“(b) Stanley Raszeja? The to the inclusion of objected No. questions 4 and 5 that the defendants no upon ground produced credible evidence to sustain on the finding of the This motion was overruled trial part plaintiff. by court.
The test is not whether defendants introduced credible evidence to warrant a of causal on the finding rather whether there is but credible part evidence before the which such be could upon finding based. are of the that there is in the
We credible evidence opinion record if believed with reasonable jury, together which inferences, of causal on the does sustain finding plaintiff. *6 to the jury (with approval The instruction given only of the was as to the duties respective parties of the parties) taken from of Wis definition general J Civil, The instruction is as follows: I, Part 1005. I— he fails to exercise ordinary
“A when is negligent person of which the care. is the care great care Ordinary degree the same or of exercises under mass mankind ordinarily to exercise ordinary similar circumstances. A fails person when, he an care to do does any wrong, without intending a or a circumstances which act omits under precaution reason- of and ought person ordinary intelligence prudence to foresee that such act omission will subject or ably or another to an of unreason- person property (himself or) able risk of or also be said injury damage. (Negligence may exercise, of, to mean a want or to that care and cau- failure tion which a and person ordinary intelligence prudence situation, work, exercises in a like or similar or usually under like or similar operation, circumstances.)” The did and that the form the parties stipulate agree in the verdict and instruction questions single defining were and sufficient. proper The does not as to the form plaintiff upon appeal complain or and instructions nor he verdict could be sufficiency heard to do so virtue of his stipulation. Timely requests would have warranted more-detailed instructions as to plain- tiff’s to exercise reasonable care for duty his own safety, to warn of or risk of known and cor- duty danger injury duties of Brozek’s to use reasonable responding employees care not to act so as to in view of circum- injure plaintiff stances which were known or should have been to known them.
The could Brozek’s jury find properly employeesnegligent size, the manner in which unloaded the crate. The they crate, and the manner in shape, weight which it was lowered and the and actions of the being position plaintiff were such that the could conclude that jury as ordinarily reasonably prudent persons should foresee that they dropping
the crate in the manner described could injure plaintiff and that care them not to the crate. ordinary required drop
The likewise had a to exercise reasonable duty for The care his own could find that because of safety. the same factors as to of the box size weight manner in unloaded, which it was and his being participation arm, with one disabled that he as an partially ordinarily reasonable and could foresee a substantial prudent person risk of to himself and that care he injury ordinary required remove himself from this or take position danger, steps himself. protect
In addition thereto it without appears that dispute his used arm to bear the right and his left arm weight *7 to crate. He not inform guide did Brozek’s em- of limitation in the ployees use of his left arm before the of the first crate. He unloading upper testified that he did warn them of this condition and the strain to his arm right before the second crate was upper unloaded. Brozek’s em- both denied he ployees such gave any The warning. jury was entitled to of accept Brozek’s testimony employees.
From the arm, plaintiff’s description sensation to his it he noticed an appears abnormal strain on his arm right while the first crate. It further unloading appears highly certain, if not that the probable, in injury occurred unloading the second crate. If the believed that he jury did not warn the other two men of the condition of his left arm and the strain he crate, felt while unloading could they find that in the same engaging activity a second time was negligence and a cause of his The injury. could also jury consider that did remove himself plaintiff from this of position danger the third and fourth unloading crates. upper We with trial court that agree could that find was the crates negligent and that his unloading awas cause of his negligence injuries.
345 Comparison Negligence.
The of the causal jury apportioned percent negligence The and 40 to Brozek’s percent employees. plain- tiff contends that as a matter of law causal negligence Brozek’s than his. was employees greater
He that the defendants’ was active and argues his if was He that negligence, any, only passive. urges pas- sive cannot constitute as great proportion total causal as active negligence.
In McConville v. State Farm Mut. Automobile Ins. Co. 374, 14, 15 Wis. 113 N. this court (1962), W. (2d) (2d) the rule of a in an that conduct automobile adopted guest accident considered of risk be formerly assumption may as classified to the com- contributory negligence subject statute. Theisen v. Milwaukee Automo- parative-negligence 91, bile Mut. Ins. Co. 18 Wis. 118 N. W. (1962), (2d) 393, case, 119 N. W. another (2d) (2d) auto-guest followed In McConville. Theisen it was out that pointed a car of a hazard be a failure to exer- entering knowing may and, cise care for his on the as safety ordinary guest such, be a which .cause of the passive negligence might but not a cause of the accident. The guest’s injuries guest could also be in other actively which would negligent respects be a cause of the accident.
In both verdict 2 and the was as to questions, inquiry- cause of the of the and not the of the injuries causé plaintiff accident.
While the failure of the to exercise care plaintiff ordinary for own in some of its safety his could be considered aspects under the rationale of the passive negligence McConville and Cases, Theisen the facts of this supra, case a justify finding of active negligence.
A basis of of permissible causal is comparison negligence a contrast between the risk of created the injury plaintiff of his active assumed —an evaluation that
and negligently of the as contrasted to the negligence negligence and passive instance, The in this par- physically defendants. plaintiff, of in- heavy object capable in the movement ticipated There in was a conflict if handled. flicting injury improperly he Brozek’s employees as to whether warned testimony the he knew was using and whether they his physical handicap effort to move the arm in their and joint support one The could believe that of this crate. heavy jury weight of his limitations not warn Brozek’s employees did plaintiff him that his failure in this to a subjected greater regard himself than Brozek’s employees injury probability The could further consider could reasonably anticipate. he that in the first crate was made unloading upper positively he of the and that in of this aware danger spite knowledge in an identical man- actively physically participated again ner in the second crate. moving is
The of causal within comparison peculiarly and its is not to be if disturbed jury’s province finding is on reasonable of the it based view credible evidence. any cannot, instance, as matter of We this conclude law that causal of the was less than that of the Brozek employees.
By affirmed. Judgment Court. — Wilkie, first The I have {dissenting). with difficulty J. is majority on the opinion finding part Granted, had a to exercise plaintiff. duty reasonable care for his own safety. Although plaintiff’s left arm was disabled there is no evidence in the record to show that it was useless. Under the circumstances I find no on the to refrain duty from plaintiff (1) partici- in with his pating unloading operation partially disabled
347 arm, other two men of this disability left or to the notify (2) unloaded. The finds majority before the first crate was the tell the two men before further duty requiring plaintiff the of the strain to his arm second crate was unloaded right crate. that he the first unloading experienced during No is such on the cited authority impressing any duty plain- I in the in tiff. find none. To situation require person which the found himself to to his fellow complain it the of workers of each ache or as arose during process pain a continuous would an unloading operation impose impracti- cal, unrealistic, and unreasonable I find no burden. such duty here.
Even that the have had a assuming plaintiff may duty, either to refrain from participating unloading opera- men tion or to tell the other of his or of the strain handicap crate, the first re- of occurring during unloading my view of the record I find no evidence to a determina- support tion that the were caused plaintiff’s injuries any really failure to meet of these duties. alleged any Any jury finding of on the and finding arm, causal connection with to his injury plaintiff’s right must have been based on conjecture speculation. Many cases have held that a verdict so founded must fail.1
The second
I have
with
is
difficulty
majority opinion
in its affirmance of the trial court’s decision
affirming
verdict
with 60
jury
causal
assessing plaintiff
percent
while
the other workers with
assessing
40
It is true that this court
percent.
generally regards
ap-
matter,2
as a
but
portionment
there are
1Arledge
Lines,
Freight
142,
(1955),
v. Scherer
Inc.
269 Wis.
821;
(2d)
Express
68 N.
(1922),
W.
Chaimson v. American R.
Co.
529,
178
189 N.
Wis.
W.
cases cited therein.
2
P.,
Chicago,
(1935),
Zenner v.
St.
M.
R.
& O.
Co.
219 Wis.
124,
exceptions my have to be at least as as the defendants would negligent plaintiff. reverse,
I find no on and enter would plaintiff, I for or at least would reverse and exer- plaintiff; judgment 251.09, Stats., under sec. cise our discretion order a new trial. have,
I been authorized to state that Mr. Gordon Justice dissent. this joins
Felger, Plaintiff and v. Respondent, Kozlowski Assignee, Superior another, Defendants: Cast Stone Com Inc.,
pany, Defendant and Appellant. 27, 1964.
September 30 October 3 Home Fire & Marine Ins. Co. v. Farmers Mut. Automobile 210, 834; (1956), (2d) Co. 274 Wis. 79 N. Zenner v. Chi Ins. W. P., Co., cago, supra, M. & R. St. O. footnote and cases cited therein.