155 Wis. 102 | Wis. | 1913
The appellant claims that he was entitled to judgment on the verdict or else to a new trial.
The first claim is based on the assumption that the court should hold as a matter of law that there was no evidence in the case which would warrant'a finding of contributory negligence, the jury having negatived the claim that warning was given by defendant’s employees* This contention must be overruled. There was ample-ground for the jury to find that had the plaintiff made reasonable and intelligent use of his senses of hearing and sight he could have discovered the approach of the train. The day was bright. The cars were ■being switched up grade. Plaintiff was at the front end of the car that was struck. It is very probable that the switch engine and the cars attached thereto made sufficient noise to be heard a distance of two ear lengths. If they did not, then the jury might well have found that plaintiff should have heard and heeded the warning given by the co-employee Barth to Klubertanz. These men were at the other end of the car.
The right to a new trial is asserted because of error in admitting in evidence the agreement between the defendant and the Schlitz Brewing Company in regard to the ownership of
The injury was received by an employee of the Schlitz Brewing Company who was engaged in a switching operation, by reason of the alleged negligence of the employees of the defendant. It was proper to show the agreement under which switching operations were carried on. In any event we do not see how the plaintiff could have been prejudiced by the evidence. As a matter of fact, it is quite evident that the plaintiff was not injured by it. If it had any effect, it would not be in the direction of convicting the plaintiff of contributory negligence. It had no possible bearing on this issue.
The paragraph of the charge numbered 1 in the statement of facts was a substantially correct statement of the law, had the relation of master and servant existed. The appellant argues that the doctrine of assumed risk does not apply or extend to negligence cases where the relation of the parties is other than that of master and servant, and that therefore the instruction was erroneous. Conceding the rule to be as appellant claims, no prejudiéial error was committed. There was no evidence in the case which showed or tended to show that plaintiff assumed the risk which caused his injury. The injury, according to the findings of the jury, was due to the fact that cars were backed against the one on which plaintiff was working, without any warning having been given of their approach. The evidence on plaintiff’s part was to the effect that on former occasions warning had always been given. The defendant’s evidence was to the same effect and also to the effect that warning was -given on this occasion. The plaintiff could not assume a risk which he knew nothing about, and one to which he had never before been subjected, and one-which he had no means of knowing that he would ever meet. We cannot assume that the jury would base its finding on a point which had no support in the evidence, when there were
The paragraph of the charge numbered 2 in the statement of facts was a substantially correct statement- of the law and-was appropriate under the evidence, hence there was no error in giving it.
The' paragraph numbered 3 of the charge as found in the statement of facts was erroneous. The doctrine of imputed negligence is of limited application. ' In this state it has been largely although not wholly confined to cases where persons riding behind horses were injured and where the negligence of the driver was a contributing cause to the injury. These cases, beginning with Prideaux v. Mineral Point, 43 Wis. 513, are numerous. The rule has not been applied to the relation of master and servant here, and we know of no good reason why it should be.- It would be a very harsh doctrine to apply to such a relation, being the equivalent of saying that an employee was actually guilty of negligence himself because his fellow-servant was negligent. The contrary rule is in substance held in Landry v. G. N. R. Co. 152 Wis. 319, 140 N. W. 15,
The most serious question in the case is whether the error should be held prejudicial. No very satisfactory conclusion can be reached on this subject. The evidence that plaintiffs fellow-servants were negligent is rather slight. If they were, it was^because Barth did not efficiently warn plaintiff that the train was approaching. The jury might find that he could and should have done so. It might well have found the contrary. The jury may have answered the sixth question as it did because it concluded that had plaintiff made reasonable use of his senses he could have seen and averted the danger. If this was. the conclusion which the jury reached, the instruction did the plaintiff no harm, because the verdict would have been the same had the erroneous instruction not been given. On the contrary, if the jury thought that Barth was negligent
By the Court. — Judgment reversed and a new trial ordered.