131 Wis. 542 | Wis. | 1907
Several errors are assigned by appellant, and so far as necessary to the disposition of this appeal will be treated in their order.
1. It is insisted that a verdict should-have been directed for defendant on the ground that the evidence established conclusively that the defendant was not .guilty of negligence and that plaintiff was guilty of contributory negligence and assumed the risk. In this behalf it is insisted that plaintiff had been at work on the premises for several years and was, familiar with them and aware of the danger; that he was not at the time of the injury within the territory assigned to him, but was in a place unauthorized by defendant; that he was an independent contractor, and hence the relation of master and servant did not exist; that the set-screw upon which plaintiff was injured was nine feet above the floor and not in any way dangerous to employees, and hence defendant was under no obligation to guard it.
It appears from the evidence that plaintiff had been em
There was a partition along the line of posts immediately east of the shafting, east of which was the territory which was ordinarily occupied by the plaintiff for the performance of his work; but at the time of the injury he was not within this allotted territory, but was piling spring mattresses on the west side of the partition and under the shaft in question, and,
We think it very clear that there is ample evidence to show that plaintiff was at the time of the injury occupying the space in question under the revolving shaft and set-screw with the assent of the defendant and without knowledge of the dangers to which he was exposed. Whether this shafting was so located as to be dangerous to employees in the discharge of their duties depends upon the facts and circumstances of the case, and upon the evidence we think it clear that the question of whether it was or was not so located as to be dangerous to plaintiff in the discharge of his duty was a question for the jury. Kreider v. Wis. River P. & P. Co. 110 Wis. 645, 86 N. W. 662. We think it equally clear from the evidence that it cannot be said as a matter of law that the plaintiff was guilty of contributory negligence or assumed the risk. Hocking v. Windsor S. Co. 125 Wis. 575, 104 N. W. 705.
It is insisted that the court should have directed a verdict for defendant because plaintiff was an independent contractor, and that the supervision retained by defendant over plaintiff was not such as to create the relation of employer' and employee. This question was submitted to the jury and they found that such relation existed at the time of the injury. The evidence tends to show that plaintiff was at work
We are cited by counsel for appellant to Harris v. McNamara, 97 Ala. 181, 12 South. 103; Forsyth v. Hooper, 11
“The question in these cases, whether the relation be that of master and servant or not, is determined mainly by ascertaining from the contract of employment whether the employer retains the power of directing and controlling the-work, or has given it to the contractor.”
Ziebell v. Eclipse L. Co., supra, presents a case where defendant, owner of a mill, entered into a contract whereby an experienced manufacturer contracted to take charge of the mill, employ and pay all laborers, make all necessary repairs, and receive a stipulated sum per thousand for shingles manufactured, and it was held that the manufacturer occupied the position of an independent contractor.
After a careful examination of the cases cited by appellant we are unable to see that they are applicable to the facts in the case before us, or support the contention of counsel that the relation existing between plaintiff and defendant here was not that of employer and employee.
“The law requires that the employer shall securely guard’ or fence shafting which is so located as to be dangerous to employees in the discharge of their duties, and if you find that', the shafting in question, under all the facts and circumstances', proven, was so located as to be dangerous to the plaintiff in the discharge of his duties in the line of his employment at the time of the injury to him, you should answer the question ‘No.’ ”
This charge is criticised on the ground that the court told the jury the effect of their answer. True, the court told the-jury what the law required respecting the guarding of dangerous shafting, but did not tell them the effect of a finding-either way upon this question. Besides, it is undisputed that the- shafting was not guarded at any time. The jury could not have been misled under these circumstances by the statement ' of the court respecting the duty to" guard dangerous shafting, in view of the whole record and the testimony properly and necessarily introduced upon this subject.
The words in this portion of the charge, “in the discharge of his duties in the line of his employment,” are also criti-cised. It is insisted that these words did not convey to the jury the idea that a-t dhe time of the injury the plaintiff was performing his ordinary duties under the employment; but we think the jury could not have been misled by the use of the words “in the line of his employment at the time of the injury,” but must have understood the words as having reference to the performance of his ordinary duties under his employment. The charge is further criticised because it fails to distinguish between furnishing a safe place originally, and thereafter exercising ordinary care in maintaining it in a reasonably safe condition, under the doctrine of Howard v. Beldenville L. Co. 129 Wis. 98, 108 N. W. 48. It is insisted
On the fifth question, as to whether or not there was any want of ordinary care on the part of the plaintiff which contributed to his injury, the appellant excepted to the charge and refusal to charge as requested. The court charged:
“In considering and answering the fifth question you are instructed that, whatever the condition of the light may have been at the time and place of the accident to the plaintiff, that was a condition which- he could at once perceive and was bound to take notice of when he went there. He was bound to use his senses and his faculties to observe such apparent condition. And if you find that the light at that time and place was not reasonably sufficient, but nevertheless the plaintiff assumed to work there, and by reason of such insufficiency of the light was injured, this you may consider together with, all the other facts and circumstances shown in the evidence as bearing upon the plaintiff’s contributory negligence.”
Upon the appellant’s request the court refused to charge as follows:
“In considering and answering the fifth question you are instructed that, whatever the condition of the light may have been at the place and time of the accident to the plaintiff, that was a condition which he could at once perceive and was bound to take notice of when he went there. He was bound to use his senses and his faculties to' discover such apparent conditions. And if you find that the light at that time and place was not reasonably sufficient, but nevertheless the plaintiff assumed to work there, and by reason of such insufficiency of the light was injured, he must be held to have assumed the risk of working there with such insufficient light and to have assumed the danger of working under such condition,. and your answer to the fifth question should be ‘Yes.’ ”
This refusal is assigned as error, and in support of this assignment counsel for appellant relies upon Faber v. C. Reiss C. Co. 124 Wis. 554, 102 N. W. 1049. But it will be seen that in the last-named case the want of light proximately contributed to the injury, while in the caste before us it is clear from the evidence that the insufficiency of light was not the proximate cause of the injury. The question of insufficiency of light in the instant case was a fact properly to be considered in determining whether plaintiff assumed the risk, but alone was not sufficient to charge plaintiff with assumption of unknown dangers. Kucera v. Merrill L. Co. 91 Wis. 637, 65
3. It is claimed that the damages are excessive. Plaintiff was forty years of age, a laborer, and capable of earning good wages. The injuries were serious and the jury assessed his damages at $5,000, and the court below refused to hold the verdict excessive. The plaintiff’s hand was badly burned by the friction while being drawn around the shaft. He lost the first, second, and fourth fingers and also part of the back of the hand. The third finger was rendered stiff. The injury left the hand in a mutilated, disfigured, and practically useless condition. Upon the whole record we cannot say that the verdict is excessive. Berg v. C., M. & St. P. R. Co. 50 Wis. 419, 7 N. W. 347; Taylor v. C. & N. W. R. Co. 103 Wis. 27, 79 N. W. 17; Schultz v. C., M. & St. P. R. Co. 48 Wis. 375, 4 N. W. 399; Karasich v. Hasbrouck, 28 Wis. 569; Baltzer v. C., M. & N. R. Co. 89 Wis. 257, 60 N. W. 716; Renne v. U. S. L. Co. 107 Wis. 305, 83 N. W. 473; Gray v. Commu
We find no reversible error in tbe record; therefore the' judgment of the court below must be affirmed.
By the Court.- — -The judgment of the' court below is affirmed.