147 Wis. 533 | Wis. | 1911
Lead Opinion
A pile of brick in the cupola room of defendant’s foundry fell upon plaintiff, injuring him severely, while Ee was in the employment of defendant and engaged in removing with a wheelbarrow slag and cinders from this room. The room was so small in proportion to the quantity of brick required to be piled therein that- the brick pile extended from the square frame at the bottom of the cupola to the door of the room, a length of about eight feet, and piled three brick or twenty-four inches wide would be about the limit of width which could be had, leaving room to open the said door and 'leaving space for plaintiff to work. With what brick there was already piled in this room the quantity brought in on the ■occasion in question raised the pile of the stated width and length to about twelve feet in height. The floor of this room was a bed of dirt and cinders, concave in the center, with a slight slant if any from the walls toward this center. The •defendant designated the place upon this floor where the brick •should be piled and the quantity of brick to be piled. There was, prior to the time in question, some brick in this room ■and at this place, forming a low pile of similar width. The brick kept in this room as well as the brick brought in upon the occasion in question was fire-brick, kept there and brought there for the purpose of lining the cupola. This- was relined •every six months, and there was during the six-months inter
It is argued that, a nonsuit should have been granted or a verdict for defendant directed as requested at tbe trial. We cannot upon tbe evidence relating to defendant’s liability, which is practically without dispute, so hold. The quantity of brick to be placed in this small room on the floor or foundation there existing and the place where it was piled and the manner of piling it were under the command and supervision of the foreman, Barbier. The pile fell from some cause. There is no evidence that the laying or placing of the brick in the pile by the Greeks was negligently or imperfectly done. In short, the finding of the court that the brick fell because it was piled too high rather negatives this, if a negative was needed for such a fact which does not,appear by evidence. The defendant provided these small and cramped quarters, fixed the quantity of brick to be piled therein, and designated the place where it should be piled. That quantity would not fit in that place unless it was piled to this dangerous height. The defendant’s foreman in charge of the placing of this brick passed through the cupola room and close by this pile of brick shortly before the injury, but claims his mind was engrossed with other matters and he did not notice the pile, and these duties all related to and were part and parcel of the master’s duty to use reasonable care to maintain a safe place. In this view the question whether or not the Greeks were fellow-servants of the plaintiff becomes immaterial. That the Greeks and the plaintiff were members of different gangs, each under a different foreman usually, and not engaged in exactly the same work, is only significant as bearing upon the contributory negligence of the plaintiff as showing that he himself took no active part in making the place unsafe. The recovery here may be based on the failure of the master to exercise reasonable care to keep the place reasonably safe.
Tbe damages found by tbe jury, $15,000, were reduced by tbe circuit judge to $11,000. We would bave been better satisfied with a greater reduction. But upon this matter tbe
By the Court. — Judgment affirmed.
Dissenting Opinion
Tbe following opinion was filed December 15, 1911:
(dissenting). I am not satisfied tbe basic ground for recovery found by this court is legitimate. I must now and then raise my voice against what seems to me a judicial refinement of logic, changing tbe law of negligence as regards who are fellow-servants. That law existed when tbe state was admitted into tbe Union and is a part of tbe written law, — more dignified than any mere legislative enactment, because of having been made one of tbe fundamentals by sec. 13, art. NIV, of tbe constitution. If, as so established, it is not appropriate to present conditions, tbe power to change it is in tbe legislature, not only because not taken away by tbe constitution, but because expressly therein reserved. .The court has no more right to vary it in any particular than to legislate in respect to any other matter.
As I bad occasion to say on another occasion (Borgnis v. Falk Co., ante, p. 327, 133 N. W. 209), tbe legislature has bad ample power to deal with tbe subject of defenses in tbe law of negligence for more than sixty years, and till very recently did not attempt it at all. Tbe law as it came to us, as I understand it, is stated at length in my opinion in Bankel v. Buckstaff-Edwards Co. 138 Wis. 442, 120 N. W. 269, and again in Halwas v. American G. Co. 141 Wis. 127, 123 N. W. 789. There I was compelled to dissent and speak inde
Here, it seems to me, the person injured and the one who piled the brick and all concerned in the matter, were members of a crew having to do, generally or particularly, with operating the cupola. Plaintiff’s working place was perfectly safe till made unsafe by his fellow-servant by the manner in which the bricks were piled up. In such cases, by a long line of decisions, particularly in the cases above cited, also Meilke v. C. & N. W. R. Co. 103 Wis. 1, 79 N. W. 22, and Pern v. Wussow, 144 Wis. 489, 129 N. W. 622, the actors are all fellow-servants. If the result is too harsh, and I am inclined to think it is, as I have several times in legal opinions said both for the court and independently, the legislature should wake up to the matter fully, and ought to have done so long ago. True, it made a good though tardy beginning, but the more firmly courts vindicate the law as given to them the more quickly and efficiently will the lawmaking power remedy any defect in it which time and changed conditions have developed or made significant.
I must dissent from the result declared, further, because the amount recovered is too large as fixed by the jury, and error was committed in the way it wa£ then dealt with, because it was not cut low enough, and because it is obvious the trial court in making the reduction did not follow the established rule requiring the reduction to be to an amount as low as any intelligent jury properly instructed could reasonably
I note, in tbe opinion of tbe court, it is observed tbe trial judge and tbe jury exercised tbeir judgment in fixing tbe amount, therefore, since it is not manifest tbe latter placed it too bigb, sucb judgment should not be disturbed. In that I am gratified to observe tbe court recognizes tbe right and duty of tbe circuit court under sec. 2878, Stats. (1898), to deal with a verdict as in this case because of tbe amount being clearly too much, though tbe verdict be not characterized by passion or prejudice. But I think tbe court, for tbe time, failed to give effect to tbe rule to be observed in sucb cases to obviate tbe danger of prejudicially invading tbe right of trial by jury. That rule is very firmly established. Perhaps this, court was first in tbe field in respect to discovering a safe logical way of justly terminating litigation where erroneously closed, tbe error being only in an excessive assessment of damages. That it is a very valuable rule, both to private and public rights, and its application at tbe circuit is to be encouraged, so far as practicable, to speedily close controversies, has been many times said. But difficulty lies often in failure in respect to tbe standard to be followed, to wit: tbe lowest amount an unprejudiced jury properly instructed could be reasonably expected to place it; or failure to appreciate tbe dignity of tbe constitutional right of jury trial, and perhaps in lapses, here sometimes by use of language not requisite to keep in clear light tbe correct rule.
Thus in Hanson v. Johnson, 141 Wis. 550, 557, 124 N. W. 506, tbe court was moved to say, for a reason for not disturbing tbe decision of tbe trial court in reducing a jury assessment of damages, that “tbe circuit judge . . . has actually passed on tbe question and reduced tbe verdict to sucb an amount as in bis judgment is proper.” Tbe same idea is carried into tbe opinion here.
Row it seems clear to me, the learned trial court did not follow the rule stated and the judgment of this court fails to legitimately acquit of error in that regard, but rather seems to emphasize it, though I must confess there was, doubtless, no thought of doing so. Erobably the general idea is that the court below did not, manifestly, fail to observe the right rule, though I must say, in this connection, I fear a different idea may be read out of the court’s opinion.
The plaintiff was some forty-seven years of age. Surely he was very badly injured and, as the jury had a right to find, will be permanently incapacitated for ordinary labor, and liable to need an attendant of some sort more or less. In the
The foregoing, it seems, significantly demonstrates that the trial court did not cut the verdict down as low as a fair jury, properly circumstanced, might probably place it. True, the unfortunate plaintiff was entitled to a reasonable amount to compensate for elements of loss not susceptible of determination by any standard but that of sound human judgment; but such judgment should be based on the thought that human suffering cannot really have any money equivalent which is really full without operating as a penalty so onerous upon the wrongdoer whose very wrong, without real moral turpitude, makes the two mutual victims in misfortune, as to be impracticable of enforcement in the social state where men must move about and'do business and be subject, necessarily, to their own frailties and those of others. That is recognized in every special system for remedying losses from personal injuries. What, in addition to computable loss, is reasonable under all the circumstances, for past and future pain and those other elements as to which there is no basis for calculation? That is the question. Not what, in the broad sense, will be a full money equivalent for such elements. • It seems that the former is the logic of the principle of compensation in such cases, entrenched in the law, and that it should be
“Although tbe defendant may have committed a fault, it is not, for that reason, an outlaw. . . . Society ... is interested to preserve it against spoliation, by applying to plaintiff’s recovery a proper limit of compensation. . . . Doubtless, tbe underlying idea of tbe law of damages is indemnity. Rut . . . absolute indemnity is impossible. Tbe law bas no standard by which it can measure indemnity for such injuries in money. Tbe most it aims to do in that regard is to give some just compensation for tbe damages suffered, which in many, if not in most, cases must fall short of complete indemnity. Tbe just rule to be given to tbe jury is, such sum as will fairly compensate for tbe damages suffered — reasonable in amount, and not excessive.” Guinard v. Knapp-Stout & Co. Co. 95 Wis. 482, 490, 70 N. W. 671.
I can do no better than to quote that language, uttered many years ago and many times referred to. Note tbe words “such sum as will fairly compensate,” not fully do so. Note tbe idea, that a full money equivalent is impossible, and any effort to attain it must not only be unsuccessful but unjust. Tbe difference between tbe practicable, — reasonable,—and tbe full equivalent in dollars, is one of tbe losses for which there is no remedy.
Applying tbe logic of tbe foregoing to tbis case, I think that a fully informed jury might probably limit tbe recovery in favor of tbe unfortunate respondent to tbe full earning value of bis life on tbe basis of tbe wages be was getting at tbe time of tbe injury and no limitation of bis expectancy of years below tbe average. That would be about $8,000.