65 Wis. 397 | Wis. | 1886
This is an action by a father to recover damages for an injury to his minor son while in the employment of the defendant. The gist of the complaint is that the servants of the defendant negligently set the boy to work in an unsafe and unsuitable place, or directed him to do a dangerous act near by or upon a circular rip-saw, whereby he was exposed to great risk, without cautioning him as to the danger to which he was exposed. The boy’s right arm and wrist were caught under a feed wheel or saw and injured. The action is to recover for the loss of the services of the boy, and as incidental to this the expense of nursing him. On the trial the plaintiff was permitted to prove, against the defendant’s objection, his pecuniary condition, the amount of his property, what he earned a day, the size of his family, and his own physical condition. It needs no argument to show that this evidence was clearly incompetent, and it was error to admit it. Pennsylvania Co. v. Roy, 102 U. S. 451; Chicago v. O' Brennan, 65 Ill. 160; P., Ft. W. & C. R. Co. v. Powers, 74 Ill. 343; 3 Suth. Dam. 727, and cases cited in note 5. As we have said, the gravamen of the action was the loss of the boy’s service. To intro-
The learned counsel for the plaintiff does not seriously contend that this evidence was admissible, but he says the defendant was not prejudiced by its introduction. It is not claimed that this evidence was withdrawn from the case, or that any direction was given by the trial court to the jury not to consider it; but the contention is, because the court instructed the jury if they found for the plaintiff they must base their verdict upon actual compensatory damages proven,— actual earnings lost in consequence of the boy’s being prevented on account of the injury from working,— that this was equivalent to a direction that the poverty of the plaintiff had nothing whatever to do with the case. Besides, it is said the amount of the verdict, being only for $200, shows that the admission of this improper testimony did not influence the jury.
This court has frequently decided it would not reverse a judgment because irrelevant testimony was admitted on the trial, when it was apparent that such evidence had no improper influence upon the jury. Fowler v. Farmers' L. & T. Co. 21 Wis. 77; Noonan v. Ilsley, 22 Wis. 39; Hazleton v. Union Bank, 32 Wis. 34. But where there is reason to suppose the rights of a p’arty were prejudiced by the admission of the improper testimony, the judgment will be reversed on that ground. State Bank v. Dutton, 11 Wis. 371; Remington v. Bailey, 13 Wis. 333. It has been held that the error of admitting such testimony was cured by a subsequent direction of the court to the jury not to con
We cannot presume from the amount of the verdict that the jury were influenced in their finding by only legal evidence. On the contrary, there is much ground for saying that this evidence as to the poverty of the plaintiff and the size of his family, worked upon the sympathies of the jury, and increased the damages. It would be difficult to show from the evidence that the actual loss to the plaintiff resulting from the injury to his son amounted to anything like $200. And if the plaintiff should recover anything for the injury,— a proposition which we should hesitate to affirm upon the facts appearing upon this record, — he was not entitled to recover that amount. The boy was earning but two dollars a week when hurt, and he was disabled for only a few weeks. The injury was slight.
It is a very grave question, in view of the facts, whether the defendant was at all in fault in the matter, or whether any actionable negligence was shown on the part of its servants. The boy gives no satisfactory account of the way the accident happened. He says he was directed by the sawyer to take the oil-can and oil the saw; that while doing this his shirt sleeve, which was hanging loosely, was caught in the feed-saw, and he was injured. It is difficult to understand how his shirt sleeve could have been caught in the feed-saw, situated as that was, and standing where he did, if he simply did the thing which he said he was directed to do, i. e., oil the rip-saw on the left side. It would not seem to be a dangerous thing to do to squirt oil upon the side of the saw, even when it was in motion. The witnesses of the defendant say that no such order was given him to execute. The boy does not seem to have been engaged to do any par
By the Court.— The judgment of the county court is re-yersed, and a new trial ordered.