141 Wis. 244 | Wis. | 1910
The plaintiff in this case had a verdict which may be abbreviated as finding: (1) That he was burned by molten iron falling from a crane ladle in defendant’s foundry on May 15, 1907. (2) The apparatus controlling the movement of the crane ladle containing this molten iron was so worn and loose as not to be reasonably safe, etc. (3) This unsafe condition of said apparatus was the proximate cause of the injury to plaintiff. (4) The defendant knew of such un-safety in time to> have prevented the injury by the exercise of' ordinary care. ( 5 ) The defendant also ought to have known,
The appellant’s counsel assigns numerous errors in the proceedings below, making his principal argument, however, on the proposition that the testimony on the part of the plaintiff relating to the manner in which his injury was inflicted is in contradiction of known physical laws and therefore impossible and incredible. This proposition must be supported by demonstration, not by mere conflict of evidence, and in order to present it properly all the necessary data for demonstration must appear affirmatively and not depend upon mere credibility of other witnesses. Rasmussen v. Wis. T., L., H. & P. Co. 133 Wis. 205, 113 N. W. 453. The evidence in this case is very deficient in measurements and descriptions, but, supplying defects in the testimony from an exhibit purporting to be drawn to a uniform scale and weighing the facts thus ascertained for the purpose of testing this question, we have the following:
The crane ladle in questiowwas a somewhat circular iron bucket lined with fire brick and forty-three inches in height, having an inside diameter at a point three inches below the top of thirty-nine inches, an inside diameter at the bottom of thirtydive inches, and an inside diameter near the center at the point of suspension of thirty-seven inches. It was suspended on a movable crane by means of a chain hook engaging at the apex of an arched handle somewhat similar to that of an ordinary pail or bucket. This handle arched over the top and extended on the outside down the sides of the ladle or bucket, and connected with the latter by means of two journals protruding from the ladle and carried at exactly opposite points in its circumference. Each of these journals fitted
The defendant’s witnesses agree with those of the plaintiff with respect to. the existence of these two lurches, but plaintiff’s witnesses say there were other intervening lurches, while this last is said to be impossible. Whether or not this is possible is not necessary to- the determination of this case. It depends, however, upon many factors not shown by the evidence, principal among which is the rate at which the ladle is-emptied and the continuity of the motion of tilting in one direction and the volume of bucket and contents above and that below the line of suspension and the oscillations of the swinging ladle. The extent of this lurch or drop is a matter upon which the evidence is widely divergent. There is competent evidence from both sides that the space between cogs on the-twenty-inch wheel minus the thickness of the screw thread or spiral projection amounted to one eighth of an inch. The distance from the center of suspension to this contact as-shown by the drawings is ten inches. The distance from the same center to the top of the bucket and ladle along the same line from the same data is twenty-two inches. Regarding the center of suspension as the center of a circle and the top of tire ladle in its circumference, the mathematical formula would be: cos. : sin. — r. : tan.; or 10 : .125=22 : .215. From-this cause alone the movement at the top of the ladle would be only slightly in excess of one fourth of an inch in a straight line. There is, however, in the record some testimony from the witness Gaertner in which he states that the distance from
The defendant asked the court to instruct the jury as follows:
“If you find that in furnishing the crane ladle in use at the time plaintiff was injured defendant exercised ordinary care to see that such ladle was in a reasonably safe condition- — that is to sa.y, in substantially as safe condition as similar ladles were, which were used in such foundries generally, — then the-defendant discharged its duty toward the plaintiff, and your answer to the second question will be ‘Nod ”
This instruction is too absolute, and if given would takeaway from the jury their right to reject the test of common usage on the ground that such appliance in common use was-itself inherently, and to the master obviously, dangerous. Yazdzewski v. Barker, 131 Wis. 494, 111 N. W. 689.
There is no rule of law which will enable a master to escape-the consequences of failing to exercise ordinary care to furnish his servants reasonably safe appliances by proving that all other masters in the same line of business and using the-same appliances are equally negligent. The evidence referred to in this requested instruction was competent and proper to-be considered by the jury as bearing upon the question of' whether or not the master exercised ordinary care in this respect; but to make such evidence conclusive on the jury by an instruction like that requested here would be to bind them-to find that the other foundrymen- were men of ordinary care and prudence in this respect. This might or might not be-true. It was for the jury to say which. There is considerable testimony tending to show that the device in question is inherently and obviously defective for the purpose for which it is used when it becomes worn to such an extent as to cause- or aggravate the lurch and splash described.
On the question of assumption of -risk by the plaintiff the
“Was the spilling of melted iron which caused plaintiff’s injuries a common occurrence in the business of molding, and •one incident to plaintiff’s work as a bench molder in defendant’s foundry ?”
If we eliminate the words “which caused plaintiff’s injuries” or treat them as equivalent to “such as caused plaintiff’s injuries,” still the question would cover only one of the •elements of assumption'of risk, viz., that of the ordinary and usual nature of the occurrence, and would leave the case with•out finding whether the plaintiff knew or ought in the exercise of ordinary care to have known of such occurrences. The ■special verdict, on the other hand, did negative knowledge of this danger, actual or imputable, on the part of the plaintiff, thus in legal effect negativing assumption of risk. If the appellant seeks in such case to assign error for refusal to submit ■a question to the jury, he must first present a proper question fully covering the matter which he wishes to have submitted.
We do not think there was error in permitting the examina- . tion of Niedermeyer as an adverse witness nor in the admission of evidence, unless it be in the opinions of the witness • -Gaerfiner with respect to. how much the gearing was worn two
The instructions of the court below to the jury seem to us very fair and impartial and sufficiently present the defendant’s side of this case to the jury. Other errors are assigned, but it is unnecessary to notice them in detail. We are convinced that substantial justice has been done and no error prejudicial to the appellant has been found.
By the Court. — Judgment affirmed.