146 Wis. 452 | Wis. | 1911
Lead Opinion
The jury returned a special verdict finding that the defendant was guilty of negligence in four respects,, and that each ground of negligence operated as a proximate cause to produce the injury complained of. If, under such a state of facts, either ground of negligence is sustained by the record as a proximate cause of the injury, then it is immaterial whether the other grounds are sustained or not. It appears that the charge of defendant’s negligence mainly relied on by the plaintiff and litigated at the trial was the question, of whether or not the defendant properly guarded the pedal near the floor, by which the saw was started. It is contended that the evidence is insufficient to warrant the jury in finding that there was no guard over this pedal. There is no dispute but that the presence of a guard over this pedal, of the kind described by the witnesses, would have been a protection against the danger of which plaintiff complains. The inquiry then is: Does the evidence justify the jury in its conclusion that no such guard was in fact furnished by the defendant ? Upon this subject the evidence is irreconcilably in conflict.
It is contended that the court erred by refusing to incorporate the following question in the special verdict, namely r “Was the pedal in question protected at the time of plaintiff’s injury by the guard M as shown on Exhibit C ?” The court submitted the following question on this issue: “Did the defendant negligently fail at the time of plaintiff’s injury to-have a safe and sufficient guard over the pedal in question?”' As heretofore stated, the plaintiff and two corroborating witnesses testified that there was no guard whatsoever over this pedal, while the defendant’s witnesses all testified to the presence of a guard as indicated on Exhibit 0, which was in evidence and shown to the jury. In the light of this- conflict in the evidence and the court’s instructions to the jury respecting this question, so- submitted in place of the one requested, it is apparent that the question submitted on this issue embraced the same facts and circumstances as the one requested, and the jury’s attention was specifically directed to such issue of the facts under the pleadings. The court plainly informed the jury that the plaintiff claimed that no guard whatever was provided and that the defendant’s -evidence, if credible, “tends-to prove that the pedal was in fact provided, with and protected by a complete, safe, and sufficient guard before and at the time of the accident.” In view of this direction, the ground of complaint to the -effect that the issue of fact as to-.
It is further contended that the court erred in refusing to .give the requested instruction as to question No. 5 of the verdict, namely, “that, in order to find that the absence of said guard was the proximate cause of the plaintiff’s injury, you [the jury] must find that the defendant in the exercise of ordinary care ought to have foreseen that an injury was likely to result from the absence of said guard.” The court had correctly instructed the jury upon the subjects of negligence •and proximate cause, in connection with questions preceding the one on which the foregoing instruction was requested, and had directed the jury to such instructions as embodying the rule to guide them in answering this question. We do not deem this practice to be misleading to the jury. Men of ordinary intelligence would comprehend such an instruction and be properly informed .by the charge given of the rules embodied in the instruction which was refused.
An exception is urged to the refusal to instruct as requested pertaining to the issue -embraced in question No. 6, respecting plaintiff’s appreciation of “the precise danger to which he was
“You are instructed that in order to answer question No. 6 ‘Yes’ it is not necessary for you to find that the plaintiff actually or in fact know of or appreciated the precise danger to which he was exposed by the absence of said guard. If you find that the plaintiff, in the exercise of such care as a person of his age and experience ordinarily exercises under the same or similar circumstances, should have known of and appreciated said danger, then you should answer said question No. 6 ‘Yes.’ ”
The court informed the jury in his instructions in connection with question No. 3 as follows: /
“The plaintiff was in duty bound to exercise such care and judgment as an ordinary person of his age, intelligence, and experience would ordinarily use under the same or like circumstances ; and if in all the circumstances in which he was placed, including his age, intelligence, and experience, he ought in the exercise of ordinary care to have known and appreciated the precise danger attending his said employment, he will be held to have understood and appreciated such danger.”
The jury were directed in their deliberations to apply this rule to question No. 6. This instruction embraces the law as stated in the rejected request on the issue embraced in this question and was properly brought to the attention of the jury in the manner followed by the court.
It is urged that the plaintiff assumed the risk resulting from the absence of a guard over the pedal, as alleged, for the reason that the danger of injury resulting therefrom in the performance of his duties was open and obvious. It is manifest that the absence of a guard over the pedal would be likely to start the jump saw whenever any substantial weight or force was brought to bear on the pedal, but it is not so clear that the plaintiff or any person of his age and experience operating the saw would obviously be informed of the danger of
Tbe court rejected this request to instruct: “The plaintiff in this action is an interested party, and in considering tbe weight which should be given to> bis testimony you should consider tbe fact of such interest, and tbe motive which be has to testify to such statement of facts as will be favorable to himself, and a like test should be applied to tbe evidence of any •other interested witness.” Tbe charge of tbe court does not contain its equivalent in words, nor was tbe jury’s attention specifically brought to tbe subject of tbe weight of this evidence. In Blankavag v. Badger B. & L. Co. 136 Wis. 380, 117 N. W. 852, tbe refusal of this instruction was declared to be prejudicial error, tbe court stating: “Where a decision in a party’s favor depends largely upon tbe weight to be given to his own evidence, and a request to give such an instruction as above is made, it is error to refuse it where tbe principle ■embodied in such instruction is not covered by tbe charge.” Tbe inquiry arises: Was it error in tbe instant case? Does tbe favorable verdict for tbe plaintiff depend largely upon tbe weight to be given bis evidence? We are persuaded that
As heretofore stated, the jury found the defendant negligent in several separate respects. We find the verdict sustained upon the grounds of liability embraced in questions No. 4, No. 5, and No. 6, and that the plaintiff was free from •contributory negligence. This is sufficient to sustain the
By the Court. — Judgment affirmed.
Dissenting Opinion
(dissenting). Plaintiff testified that the pedal1 was not guarded at the time of the accident. So did Stain-brook and Baker, two of his boy chums who at the time of the trial had been discharged from defendant’s employ. Baker made a sworn statement after the accident to the effect that he did not know whether the pedal was guarded or not, and to this extent his testimony was impeached. Seven apparently credible witnesses testified on the trial that the" pedal was guarded at the time of the injury. It is obvious that the evidence strongly preponderated in favor of defendant’s contention. Indeed, the able counsel for the appellant argue in all sincerity that the finding of the jury to the effect that a guard was not supplied is not sustained by the testimony.
Question 4 of the special verdict was as follows:
“Did the defendant negligently fail at the time of plaintiff’s injury to have a safe and sufficient guard over the pedal in question ?”
The defendant requested the court to charge the jury in reference to said question as follows:
“The plaintiff in this action is an interested party, and in considering the weight which should be given to his testimony you should consider the fact of such interest and the motive which he has to testify to such statement of facts as will be favorable to himself, and a like test should be applied to the evidence of any other interested witness.”
This charge was refused and no substitute therefor was given. The instruction was correct as a proposition of law. Under the facts in the case it was a peculiaidy appropriate instruction to give. This court has lately held twice that a refusal to give this instruction was prejudicial and reversible