This аction is brought by the plaintiff, an infant, by his guardian ad litem, to recover of the defendant company damages for personal injury received while
The defendant company operated a large match factory at the city of Oshkosh, and employed a large number of оperatives. One of the principal buildings was two stories in height, and the upper story was used by the several machines employed in various departments of the works, and each machine was managed by one person, and the machines were set near together, within two or three feet of each other, and were run by steam machinery in another building. There was a stairway from the lower to the upper story, and in one corner of the upper room was an elevator, run also by steam, and used exclusively for elevating the heavy materials used in the business from the lower to the upper story, and for carrying down the manufactured products and waste material. The elevator was made like others for similar use, but evidently not of the best construction, and it often аnd easily became out of order, without the most careful handling and use. It was run by ropes attached to the cage and passing over two drums or pulleys, and the slack caused by the elevator going up or down, and run off from one drum, was taken up by the other. It was started up or down by levers worked by the hand, and notches or catches in the elevator rod running up and down the shaft stopped it even with the upper floor. This may not be a. scientific description, but is near enough for our present purpose.
The plaintiff operated a machine for making boxes for matches, which stood about thirty feet from the elevator. He was about fourteen years of age, and had worked in the establishment two years. On the 26th day of May, 1891, his machine was somewhat out of order, and the machinist was engaged in trying to fix it, and the plaintiff kept it
There was a man by the name of Charles Glendenning, who was the machinist fixing plaintiff’s machine at the timе, and he was also usually called “ Charley,” and he supposed that he was the one called, and he ran towards the elevator and arrived there first, according to his own testimony, and was trying to fix the elevator, whose ropes were off the drum, and were hаnging down around the package of waste on the elevator, when the plaintiff came up and stepped in on the floor and went down. A man by the name of Wentworth had been at work on the upper floor that afternoon, taking packages of waste from the press, and loading them upon the elevator, and sending them down to another man, who stood below ready to receive them. He had sent down one package just before he put the package that went down with the plaintiff on the elevator, but somehow the elevator had become out of order and he could not start it down, and he was trying to arrange the ropes when the plaintiff came. What caused the elevator to fall none of the witnesses seemed to know. When the plaintiff and Glendenning came to the elevator it stood several inches above the floor of the room. This would seem to indicate that the elevator rod had passed by the catch or slot which held it even with the floor when
This elevator had been used to carry up or down all the freight of the concern for a long time, and was used again that afternoon, and seemed to be sufficiеnt for the purpose; and yet it had a strange faculty of getting out of order, at least temporarily. It must have been very loose-jointed, and the ropes had a tendency to get loose on, and get off, the pulleys. It was a question whether this elevator mаchinery was defective and in want of repair, or was put out of repair by careless handling at this time. It is strange that the elevator stood firm Avhile loaded by the bale of waste weighing 200 pounds, and then fell suddenly by this boy plaintiff stepping on it. Any person acquainted with this еlevator could have seen that there was something wrong about it by the ropes being off the pulley and hanging down loosely over the floor and on the bale of waste, before getting very near to it.
This is a fair statement of the case. The jury found a special verdict as follows: (1) The defendant was guilty of want of ordinary care and prudence, which caused the injury of the plaintiff. (2) The plaintiff was not guilty of the want of ordinary care and prudence that contributed to the injury. (3) A co-employee of the plaintiff wаs not guilty of negligence which, with the negligence of the defendant, contributed to the injury. (4) If the jury find that the defendant had defective appliances, and at the time of the injury incompetent men to operate the same,
The evidence presented several special issues to the jury:
(1) Had the plaintiff reason to think that he was the one called by the name of “ Charley,” and that he was called to take the bale of waste on the elevator to the lower floor? (2) Was the defective cоndition of the elevator, generally,, the proximate cause of the plaintiff’s injury? or (3) Was the elevator at the time put out of order and in a dangerous and defective condition by the negligence of Went-worth, a co-employee of the plaintiff? (4) Had the plaintiff notice, before he stepped upon the floor of the elevator, that it was out of order, or that Charley G-lendenning was trying to put it in proper condition for use? (5) Had his co-employee Reiss authority to call the plaintiff away frоm his usual work and order him to take the bale of waste down to the lower floor on the elevator, or had the plaintiff reason to think he had such authority? (6) Was taking freight down on the elevator within his line of employment?
I do not say that these questions should have been submitted to the jury for a special verdict, but they ought to-be embraced in the issues submitted. The first and second questions, as to the negligence of the defendant and the contributory negligence of the plaintiff are very general and embrace many facts. The third question submits the negligence of a co-employee only in connection with that of the defendant, and the independent question whether the negligence of a co-employee was the proximate cause of the injury was not submitted to the jury. The fourth quеstion is obscure, if'not unintelligible: “If the jury find the defendant had defective appliances and incompetent men to operate the same, did the plaintiff assume the risk thereof?” But the jury was not asked to find any such thing, and have not so found, and therefore the jury had nо right to find that the plaintiff did not assume the risk thereof.
The questions submitted were too brief and general to call the attention of the jury to many of the most important and essential ingredients of the plaintiff’s right to recover in such a case. It is a very peculiar case, and somewhat complicated, and the jury should have been made to thoroughly understand it and the law governing such a case in all of its рeculiar and essential features. The answers do not dispose of all of the merits of the case, or show the right of the plaintiff to recover.
1. We are therefore of the opinion that the court should
2. We are of the opinion that the court ought to have given the two instructions asked, as having a direct bearing upon the questions proposed. If the plaintiff’s injury was causеd by the negligence of a co-employee alone, he ought not to recover. Or, if the plaintiff received his injury in doing that which he was not employed or directed to do by the company or by the foreman of the department in which he was to do his work, or while out of the line of his employment, he ought not to recover. The court gave no instructions covering the ground of these two proposed instructions, and we think it was error to have refused to so instruct the jury.
3. We think the court should have sustained the defendant’s objeсtion to the third question of the special verdict. The jury was asked to find whether the negligence of a co-employee and that of the defendant concurred to contribute to the injury. Such a question would be difficult for even a lawyer to answer. Or, if the question was divided and both answered in the affirmative, the legal conclusion would present a very difficult problem. The second question proposed by the defendant should have been substituted for the third question submitted; then the jury might intelligently answer whether the injury was caused by the negligеnce of a co-employee or not.
This court is asked to order a new trial on the merits of the case, as the circuit court ought to have done on the motion of the defendant. The jury failed to find on many of the material questions in the case, by reason of the insufficiency of the special verdict. It will be timely to reverse the judgment on the merits of the case after the jury have considered and found a verdict upon all the merits of the case. If we should be of the opinion that the plaintiff
By the Co-art.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.