157 Wis. 443 | Wis. | 1914
Lead Opinion
The following opinion was filed March 17, 1914:
Questions raised by appellant’s counsel and not mentioned in this opinion, are to be regarded as having been passed as not of sufficient consequence to merit a place in the record of this case.
The faults which the jury found defendant guilty of, resulting in decedent’s death, were failure to perform the statutory duties of an employer to furnish his employee a place of employment “as free from dangers to life and safety as the-
Thus the whole field wherein employees in the course of their employment may be injured, was covered, — common-law standards of compensation, recoverable in the common-law way, being left undisturbed as to any employer not coming under the new system so as to waive the defense of contributory negligence, — the absolute duty was created of accomplishing physical results for prevention of industrial accidents, and the industrial commission was empowered with authority to supervise and coerce as to performance of such •duties. The legislative purpose is manifest. The language •creating the duties mentioned is broad, general, and in unmistakable words of positive command.
Counsel for appellant contend that the trial court dealt
There is little use in enlarging on the plain words of the statute. They must be taken as meaning just what they express, no attempt being made to minimize in favor of employers because of the heavy burdens, seemingly, by the lit
So whether there was evidence to carry the questions submitted to the jury in the language of the statute as to alleged
One of the efficient violations of duty charged by respondent and denied by appellant, is failure to warn decedent of the danger which resulted in his death. The evidence was directed to that point as one vital to respondent’s right to recover. Appellant’s counsel by several requests for submission of questions in the special verdict — including one as to whether decedent was not specifically ordered not to work at the particular place, but go to another specified, where there was no overhang of frozen ore — efficiently challenged the court’s attention to this important phase of the case. The requests were not only refused but the instruction on the subject of contributory negligence did not cure the omission.
It is no answer to the contention of appellant’s counsel to say that whether there was efficient fault on respondent’s part in failure, as alleged, to warn, is mere evidentiary matter
Upon counsel making a proper demand for a special verdict he secures for his client the benefits of a statutory right. Judicial conservation of that right, by carefully following the requirements of the statute in framing the verdict so as to include therein all which should be included, and exclude all which should be excluded, submitting a question, covering in concise plain language, admitting of a direct answer for each issue of fact raised by the pleading and controverted by the evidence, or pleadable and properly raised by evidence, and guarding carefully against double questions and questions calculated to invite inconsistent answers, — will make the special-verdict law the valuable instrumentality the framers of
■What has been said as to the nature of a special verdict and the importance of care in according the statutory right, not adding thereto nor taking therefrom, is but a reiteration of what has been said many times before, but seems appropriate to be repeated occasionally, to the end that justice may not miscarry by failure to comply with the plainly judicially expounded statute. The decisions of this court on the subject have been so numerous that reference to them now is deemed unnecessary and inadvisable.
True, in a broad sense, the-question of safe working place, and efficient conservation of safety during working operations, includes the subject of warning against dangei’s, and notice not to work in a dangerous place as, also, the subject of contributory negligence; but, nevertheless, failure to warn being pleaded, as in this case, as a substantive ground of liability, it is a fact in issue rather than mere evidentiary matter. Therefore, it was plain error not to submit a question on the subject. Sufferling v. Heyl & Patterson, 139 Wis. 510, 516, 121 N. W. 251; Harper v. Holcomb, 146 Wis. 183, 194, 130 N. W. 1128; Szewczyk v. E. W. Ellis L. Co. 146 Wis. 452, 459, 131 N. W. 977; Wawrzyniakowski v. Hoffman & B. Mfg. Co. 146 Wis. 153, 162, 131 N. W. 429.
While failure to submit a question covering some particular material issue of fact may sometimes be cured by instructions, the better practice is to follow the statute strictly, Wawrzyniakowski v. Hoffman & B. Mfg. Co., supra; but where the difficulty is not thus obviated the error is of serious nature. That here falls within such class. There was a refusal to submit the question of warning, notwithstanding evidence tending to prove that decedent was ordered to cease working in the place of danger and go to another, pointed out as free from peril; and the jury were so instructed on the
It may be that, since it was appellant’s duty not to permit decedent to work in a place not as free from danger as the nature of the employment would permit, he might have been merely warned against the peril which he was in and yet not have been guilty of contributory negligence, as matter of law, in continuing his work. In that respect the common-law rule, recognized in many cases, in view of the statutory duty of the defendant to go further than to merely warn of danger, — to go to the extent of warning of such emphatic character as to take the cast of prohibiting continuance in the place of danger, would not necessarily govern. But a warning of such emphatic character as the one testified to and neglect to heed it would involve efficient contributory fault. So there was no way the court could have rendered failure to submit the question under discussion harmless, except to have plainly instructed the jury that if the decedent was admonished to cease operations in the dangerous place he was guilty of contributory negligence as a matter of law.
It has been suggested that the instruction referred to was not excepted to,, as not sufficiently specific, and that no further instructions were asked, also that failure to prohibit the deceased from working in the place of danger was not a matter in issue under the pleadings. The answer to that is that the pleaded facts, as to want of safe working place and failure to warn, by reasonable, if. not necessary, inference covered failure to warn of danger to the statutory extent, and the request to submit the question as to whether the decedent was ordered not to continue at work in the dangerous place was sufficient to challenge attention of the court to the fact that, if such circumstance occurred, deceased was guilty of contributory negligence as matter of law and require an instruction to that effect or submission of the question.
A request for submission of a question covering a vital
From the foregoing it will he seen that the refusal to submit the questions as to warning, particularly the one as to the decedent having been ordered to cease working in the place of danger, was prejudicial error for which the judgment must be reversed.
The further complaint is made that the damages assessed are excessive. That needs attention to aid in closing the litigation without necessity for again appealing. The recovery could not properly exceed the amount of the pecuniary loss to the widow. That must be measured by the present worth of such portion of what decedent would probably have earned had he lived his expectancy of life, as would, with reasonable certainty, have inured to her. On that basis, there does not seem to be good reason for awarding respondent the sum of $7,500. The earning power of decedent was around $425 per year. ITe was thirty-two years of age. His expectancy of life was around thirty-three years. His earning power, on the average, for that period could not fairly he taken at more than $350 per year nor more than $200 beside the necessary outlay for himself. So the limit of pecuniary loss to her was $200 per year during his expectancy of life. It might be much less. Reduced to a reasonable certainty, doubtless the $200 would need to be substantially diminished. Four thousand dollars would purchase an annuity for the widow of $200 per year.
Therefore it seems reasonably certain a jury on the evidence before us might place the recovery as low as $4,000. If the cause were to he remanded with permission to take judgment and avoid a new trial it could not be for more than $4,000. Since it must go hack for a new trial there will be opportunity for a second jury verdict, but as a guide to
By the Court. — The judgment is reversed, and the cause remanded for a new trial.
Concurrence Opinion
I concur in the reversal of the case and the ordering of a new trial, but I do not concur in the direction that more than $5,000 would be fatally excessive as damages.
A motion for a rehearing was denied, with $25 costs, on June 17, 1914.