137 Wis. 123 | Wis. | 1908
There is evidence tending to support the following facts: The plaintiff was between sixteen and seventeen years.old at the time of his injury, a dull-witted farm lad without mill experience and wholly illiterate. Besides his farm experience he had worked about a month in a lumber camp and about another month for the defendant, piling blocks in its pulp mill. The defendant had ample opportunity to know his incapacity and lack of experience prior to June 10, 1906. On the date last mentioned, about 6 o’clock in the morning, after the plaintiff had worked ail night and was about ready to go home, the superintendent of defendant ordered him to “oil the machine.” At this time there was in sight a covered box projecting somewhat above the mill floor containing shafts, journals, and cogwheels in operation which were -creaking and smoking, apparently heated on account of lack of oil. No warning or instruction was given. The superintendent immediately went away. The plaintiff raised the cover of the box, and, evidently grop
Defendant’s counsel attempts to support tbe first error •assigned by a claim that tbe evidence of tbe plaintiff to tbe effect that be was directed by tbe superintendent to oil tbe machine is incredible or impossible, against all reasonable probabilities, and to support this claim points, first, to tbe denial by tbe superintendent that be gave such order, and, second, that tbe superintendent and other witnesses show that at tbe time of tbe accident, wbicb tbe plaintiff testifies occurred immediately after that order, tbe superintendent was at a distance of about twenty rods from tbe mill. He also presents argumentative deductions from other items of evidence in support of this position. Tbe evidence is, however, Avitbout contradiction that tbe superintendent was in tbe mill that morning about half-past 5 o’clock and shortly before the-plaintiff was injured, and saw tbe plaintiff. We find nothing'to contradict tbe plaintiff’s statement that tbe box gearings Avere squeaking and smoking, and it is quite certain that tbe plaintiff did attempt to oil them. The exact time •of tbe injury or that of tbe superintendent’s visit to tbe mill is not very clearly shown, and is rather an estimate, so that as an alibi tbe evidence on this point in rebuttal of plsiintiff’s claim is rather weak and inconclusive. There may be some improbability in tbe testimony of tbe plaintiff to tbe effect that the superintendent told him to oil the machine, because of plaintiff’s age and inexperience, and because there was another workman (not then present, however) who was charged with tbe exclusive duty of oiling tbe machine, but this would be matter going to tbe credibility of tbe witness and was for tbe jury. We cannot say there was no evidence to go to tbe jury on this point. Under proper instructions tbe jury found that tbe plaintiff bad a right to understand,
There was probably evidence upon which the jury might, have found in favor of the defendant upon either of these propositions, but in our view of the case there was sufficient in the evidence to support a verdict upon these points such as-the jury rendered. Chopin v. Badger P. Co. 83 Wis. 192, 53 N. W. 452; Van de Bogart v. Marinette & M. P. Co. 127 Wis. 104, 106 N. W. 805. The notion that Chopin v. Badger P. Co., supra, has been in some way shaken or overruled is erroneous. Like all precedents in negligence cases, it is-necessarily limited to the points actually decided upon the facts then before the court. But the precedent established by that case has stood the test of time unshaken and unim-peached. We find no ground upon which the instant case could be properly taken from the jury. Several exceptions-are taken to portions of the charge to the jury. The first relates to a statement to the jury of the plaintiff’s testimony, and somewhat confuses the claim of plaintiff made through his counsel as argumentative deductions from facts with the facts themselves. But we are not convinced that this slip was prejudicial. The next alleged error in the instructions is in relation to the second question of the special verdict, where the instructions, among other things, told the jury:
“You will consider everything, and if as a whole it convinces you to a reasonable certainty that the plaintiff’s contention as to that fact is right, then you must decide the question and answer in his favor — answer the question in the affirmative.”
“Now, this does not mean whether the plaintiff had intelligence, experience, instruction enough to enable him to see that there were cogwheels in that box on these shafts and that they were revolving, and that if he got his hands or his clothing in between them that some danger, some injury, might result from them. But the question is: Did he have such instruction, experience, or intelligence as to enable him to appreciate, to comprehend, the danger of this thing happening to him from what he saw ?”
Considering the words “the danger of this thing happening to him” as equivalent to the danger of getting his hands or clothing caught in the gearing, this instruction was correct and within the rule of Chopin v. Badger P. Co., supra. It is the same idea clothed in,different words.
We cannot approve the remarks of plaintiff’s counsel in the presence of the jury to the effect that “the Travelers’ Surety Company stands back of the defendant in this case.” But, although irrelevant as argument, these words were ut
We find no error in tbe form of tbe special verdict. Tbe fourth question of that verdict was as follows: “Had tbe plaintiff tbe right to and did be understand that said order included tbe machinery in said box? ” Tbis is objected to as double, and Peake v. Superior, 106 Wis. 403, 82 N. W. 306, is cited to support tbe objection. Had tbe question been answered in tbe negative there might have been some ground for criticism, but tbe affirmative answer presents no duplicity, but asserts tbe existence of both conditions mentioned in tbe question. Tbe whole jury must have found tbe existence of both conditions in order to answer tbis question in tbe affirmative. Brunette v. Gagen, 106 Wis. 618, 82 N. W. 564. We cannot attempt to review in detail tbe evidence of the extent of plaintiff’s pain, suffering, or injury. Suffice it to say that tbe injury was inflicted under most distressing circumstances of physical and mental suffering, drawing tbe plaintiff into tbe cogwheels so as to stop the machine, which bad to be taken apart in order to extricate him. He was unconscious for some time, bis ear was tom from bis bead, tbe side of bis face disfigured, bis arm broken, and he was in the hospital for a time, and since has been and is subject to pain and fits or spasms somewhat.re
By the Gourt. — The judgment of the circuit court is affirmed.