148 Wis. 573 | Wis. | 1912
The following opinion was filed January 9, 1912:
There was evidence from which the jury might have found that the sign forbidding all persons except the operator to manipulate the gates was not in use at the time of the accident or for some time before. There was also some evidence from which the jury might have found that the employees of the defendant, other- than the operator, customarily raised and lowered the gates of the freight elevator. There was apparently no particular danger to be apprehended from opening the elevator gate by a person riding in the elevator, provided no attempt was made to get off while it was in motion. The jury no doubt acquitted the plaintiff of attempting to leave the car while it was running, and although the great preponderance of the evidence was to the effect that such action on plaintiff’s part was the cause of his injury, yet the jury might and no doubt did give credence to the evidence of the plaintiff, and he denied that he undertook to leave the elevator while it was moving. The fact of contributory negligence on the part of the plaintiff was not so clearly established by the evidence that a court should say as a matter of law that there can be no recovery because of it.
The jury found that the elevator boy, Van Paine, was an incompetent servant, and this is the sole ground of negligence relied on to support the judgment. The appellant contends that Van Paine was not incompetent, and that, if he were, it had no notice, actual or constructive, of such incompetency. Van Paine was sixteen years and seven months of age at the time of the injury to plaintiff. His size and weight were below that of the average boy and he was somewhat pale and nervous. Aside from these facts which the defendant either knew or should have known, there was little evidence of incompetency on the part of Van Paine. The court errone
The closest question in the case is whether there was any evidence which warranted the jury in finding that the incompetency of Van Paine was the proximate cause of the plaintiff’s injury. However incompetent Van Paine might have been at other times, the evidence to show any actionable negligence on his part in the management of the elevator at the time plaintiff was injured is slight. There were three persons besides the elevator boy on the elevator when it left the first floor. Two of them were going to the fifth floor, while the plaintiff intended to get off at the third floor. He did not advise the elevator boy of this fact, but the latter knew where he worked and where he intended to get off. Van P'aine testified that he stated before leaving the first floor that he would take the two parties up to the fifth floor first and leave plaintiff at the third floor on the return trip. The jury might have been warranted in finding that this conversation did not take place, but, whether or not it did take place, Van Paine did not intend to stop the elevator at the third floor until after he went to the fifth floor. There is evidence in the case from which the jury might have found that there was a perceptible slackening of the speed of the elevator as it approached the third floor, so that one might be led to believe that it was going to stop there. The plaintiff stepped to the door of the elevator about the time it reached the third floor and placed his hand under it and slid it up, looked at the elevator man,
“If tbe plaintiff was warned against raising tbe gate in getting off the car, either by posted sign or by word of mouth, and, contrary to such warning, raised tbe gate, and such act contributed proximately to produce bis injury, then such act constituted want of ordinary care on bis part that contributed proximately to bis injury. Tbe effect, in this respect, of tbe sign ‘Do not raise tbe gate’ on tbe gate, or other gates, facing outwards, if you find such a sign was up at tbe time of or prior to tbe injury, is for you to determine. If you find that tbe natural and reasonable effect of such sign, if you find it bad been posted, was to warn against raising tbe gate in getting off tbe elevator, then tbe plaintiff must be held to have bad knowledge of tbe danger to him of such act, and to have been guilty of contributory negligence if be raised tbe gate and such act contributed proximately to produce bis injury.”
No particular fault is found with tbe accuracy of this instruction, and it informed tbe jury that if tbe notice not to raise tbe gates bad been given, and failure to obey such notice was tbe proximate cause of tbe injury, then it must find plaintiff guilty of contributory negligence. Inasmuch as tbe proposed question did not cover a fact specifically pleaded, tbe instruction quoted was a sufficient substitute therefor. Tbe situation is like that presented in Steber v. C. & N. W. R. Co. 139 Wis. 10, 120 N. W. 502, where it was held not to be error to refuse to submit a specific question because of tbe character of tbe charge upon tbe general question dealing with tbe subject of contributory negligence. What is here said is
The defendant requested the court to charge the jury as follows:
“In judging of the credibility of the plaintiffs evidence, you may properly consider the interest plaintiff has in the result of his trial, the temptation to which he is subjected, under the circumstances, to color his testimony favorably to himself, and you will consider everything bearing on that subject, and give to the evidence of the plaintiff such weight only as, in your judgment, it is entitled to, and a like test should be applied to the evidence of each, of the witnesses who has testified in this case.”
The instruction was correct and should have been given. This court has decided, in Kavanaugh v. Wausau, 120 Wis. 611, 98 N. W. 550, that it is reversible error not to give such an instruction, and the Kavanaugh Case is expressly approved in. Blankavag v. Badger B. & L. Co. 136 Wis. 380, 117 N. W. 852. The equivalent of this instruction was not given, as respondent’s counsel contend. The court did say:
“You are the sole judges of the credibility of each and every witness sworn upon the trial, as well as of the weight and effect of the evidence as a whole. In determining the credibility you should consider the witness’s apparent intelligence, .candor, knowledge of the matters testified about, interest in the result of the trial, relationship to or relations with the interested parties, corroboration by other credible evidence or proved facts or circumstances, the motives for falsifying, or the absence of these things, or any of them, so far as their presence or absence appears from the trial, the manner and appearance of the witnesses upon the stand, the inherent reasonableness or the absence of it of the statements made, and any other facts or circumstances appearing from the evidence or upon the trial tending to affect the question.”
This instruction does not call the immediate attention of the jury to the fact that the plaintiff had a strong motive for
It is insisted by the appellant that the damages assessed, amounting to $3,600, are excessive. There is some evidence of permanent injury, and there is no doubt that plaintiff was very severely hurt by his fall of thirty-eight feet down the elevator shaft and that he suffered a great deal of pain in consequence of such fall. The award of damages is very liberal, but is not so excessive that this court should interfere with it.
A number of other errors are assigned, relating principally to rulings on evidence and to alleged errors in the charge. We do not think the appellant is entitled to a reversal because of them or that any useful purpose would be served by discussing them in detail. We find no reversible error in the record.
By the Court. — Judgment affirmed.
In support of a motion for a rehearing there was a brief for the appellant by Doe & Ballhorn.
Eor the respondent, contra, there was a brief by Charles B. Hammersley and Christian Doerfler.
The motion was denied March 12, 1912.-