It is сonceded that plaintiff’s employment at the time of the injury was connected with interstate
It is conceded in this case that there was danger for anyone to enter the confined space оf one of these bunkers, a charcoal fire burning and gas being present, until after some six to eight minutes had been allowed for such gas to pass off by the opening of the top of tire bunker; that the going out of a lowered light in such bunker was a danger signal and notice of the need for such ventilation; that defendant knew of such danger continuing until such ventilation had bеen had; that warning to that effect had been conveyed to plaintiff; that plaintiff knew of such danger from instructions, his prior experience, and his lowering the light in this particular instance on first opening the bunker and on his return after the fifteen or twenty minutes interval indicated this.
For convenience we shall refer to the known or first danger present upon the immediаte opening of such bunker in which charcoal was being consumed as the primary danger, and the one upon which plaintiff must rely in order to assert and maintain a liability against defendant, and the one asserted to have been present after there had been the fifteen to twenty minutes of ventilation and after a lowered light continued to burn, as the secondary danger.
A liability against thе defendant could only be sustained in this case on the theory that defendant either had actual knowledge or failed to acquire, in the exercise of due care, actual knowlеdge of such “secondary” danger, if there be one, of entering such a bunker after the expiration of the usual time allowed for proper ventilation or after a test of lowеring a light and its continuing to burn, and further in failing to properly instruct the plaintiff of such continuing or newly arising danger, or secondary danger.
The special verdict was framed to require the jury to
The twelve jurors were unanimous in their answer to the third question to the effect that the defendant could not be charged with failing to exercise ordinary care in learning of this secondary danger (necessarily assuming absence of actual knowledge). Somewhat strangely, however, one of such jurors, Menz, dissented from what would otherwise have been the unanimous conclusion of the same twelve jurors in the consideration of the second question, which determined that the defendant did not have actual knowledge of any such secondary danger.
These two questions covered the entire subject of any possible breach of defendant’s duty towards рlaintiff. A proper jury finding in defendant’s favor on these two questions would not only have interposed an obstacle to the entering of a judgment for plaintiff but would have required a judgment fоr defendant, — for when court or jury find that defendant has breached no duty towards plaintiff that terminates, and in defendant’s favor, such tort action.
Because of the dissent the juror Menz еxpressed to the second question and because two other jurors expressed their dissent to the jury’s conclusion on the first question of the special verdict, namely, relating to the time when plaintiff was overcome by the gas, and still another juror together with juror Menz dissented on question (9) as to plaintiff’s contributory negligence, the trial court felt bound to rejeot the verdict as a whole and therefore ordered a retrial.
Unfortunately there is support for such view by the trial court from language in several of our former decisiоns passing upon the effect to be given to sec. 270.25 (sec. 2857), Stats., providing that a verdict, finding, or answer agreed to by five sixths of the jury shall be the verdict, as the stat
The decisions necessary now to consider are the following:
In Dick v. Heisler,
“As we construe the statute, ten members of the jury must аgree before a question can be answered; but the 'same ten must agree to each question before-it can be answered.” . . . “Of course, a verdict may be arrived at if thе same ten or eleven jurors agree in their answers to all of- the questions.”
In Kosak v. Boyce,
In Stevens v. Montfort State Bank,
In Bentson v. Brown,
The situation in the present case now shows us that the language used in those former cases, and particularly that used in Hobbs v. Nelson, supra, and for which language there the writer here should be charged, was unfortunate, to say the least, and has undоubtedly led the trial courts in other instances than the one now before us into the mistake which we must now undertake to correct.
When in cases of this kind a special verdict is submitted tо the jury it generally contains one set, or one or more sets,_ of questions which may determine, independently of all the others, the essential elements of such a case. That is, lawsuits generally present matters or issues which belong to ,what, for want of a better term, may be described as plaintiff’s attack, failing in sufficient proof of which his lawsuit fails; there may аlso be that which constitutes defendant’s defense, immaterial, of course, unless plaintiff succeeds in his attack. ' (Disregarding here the matter of counterclaims where the defеndant, in effect, is plaintiff.)
If now, ten jurors, as in former days twelve jurors, are agreed upon the essential questions asserted as to a cause of action or to sustain a defense, though each such ten may not be the same as are in accord on other questions of the special verdict, their accord on such essential questions is sufficient to make the verdict proper to be now received under the present law. In other words, if ten jurors are agreed that a defendant was negligent as to some particulаr duty and also that such negligence was a proximate cause, of
The sаme situation undoubtedly would arise with reference to the question of contributory negligence. One set of ten jurors might find defendant negligent and that such, negligence was the proximate cause of the injury; another set of ten might, however, find that there was negligence by plaintiff proximately contributing to the same injury. That defendant was thus found negligent and proximately contributing to the injury would then become immaterial, so far as plaintiff’s ultimate right to recover was concerned, because ten jurors having found that plaintiff himself was negligent, then it follows, as a matter of law, that the plaintiff cannot recover.
Under this view, and regretting the former language of this court, above recited, which must now be deemed with
Other questions presented need not be considered.
By the Court. — Order reversed, and cause remanded for judgment for defendant.