Young v. Milwaukee Gas Light Co.

133 Wis. 9 | Wis. | 1907

SiebecKee, J.

An exception to tbe reception of evidence is urged upon the ground that tbe evidence admitted and relied on by tbe plaintiff to show Demorrow’s incompetency as foreman of tbe rigging crew did not tend to support tbe specific charge of incompetency charged in tbe complaint Tbe complaint charges that defendant was negligent in furnishing an incompetent person to act as foreman of tbe rigging crew employed in conducting its business; that such foreman, on account of bis want of proper skill and knowledge,' caused a gin pole, used for hoisting a smokestack, to be placed on a smooth steel plate on top of an arebed building inclosing a boiler, without securely fastening such gin pole on the surface of the plate supporting it, thus leaving it in an unsafe and dangerous condition for the hoisting of the smokestack. It is not contested but that it was within such foreman’s duty to have the ."in pole properly and securely erected for the purpose of this undertaking and that the evidence justifies the conclusion that it was not securely placed on the occasion in question. Evidence was admitted tending to show that Demorrow, before this accident, had performed his duties as such foreman incompetently and unskilfully in respect to overloading a scaffold and causing it to collapse, in the unskilful management of the work of hoisting a pump,, in improperly and dangerously unloading a heavy trip-hammer from a car, and respecting the general disposition with which he performed his duties and the general safety with which he conducted his work. Defendant’s exception that evidence of such acts of incompetency does not tend to support the specific charge of incompeteney is not well taken. These different acts of Demorrow were shown to be in the line of his duty as foreman of the rigging crew and tended to throw light on the question of his fitness and competency to perform them. The evidence was therefore properly submitted to the jury.

Nor is the objection that the evidence fails to show that knowledge of Demorrow’s incompetency came to any one authorized to discharge him a good one. It appears that the chief engineer, Brown, and superintendent, Efraft, had observed how Demorrow performed his duties and had knowledge of his conduct and the way in which he performed his duties, which included the acts above specified, and that they had power to remove him and fill his place as foreman.

An exception to a portion of the instructions given by the court in connection with the third question is alleged as ground for reversal, on the ground that the instruction is misleading and erroneous, in that it is a mere general statement of an abstract proposition of law, and omits to inform the jury what is incompetency in the law of negligence as applied to the facts adduced in evidence. We discover no such defect in the instruction and find it is applicable to this branch of the case and that it embodies a correct statement of the law.

Another instruction complained’ of bears on the sixth question of the special verdict, which covered the inquiry of whether defendant had constructive notice of Demorrow’s incompetency, if the jury found as a fact that he was an incompetent person as charged in the complaint. The jury’s finding that the defendant had actual knowledge of Demor-row’s ineompetency renders the inquiry concerning defendant’s constructive notice an immaterial one, and no prejudice could have resulted from the alleged error in the court’s instruction on this subject.

Defendant requested that the jury be directed that, if the evidence preponderated to the effect that Demorrow knew how to set the gin pole properly on this occasion, then the inquiry as to his competency must be answered in the affirmative. The court informed the jury that the plaintiff had the burden of establishing the fact of Demoxrow’s incompetency, and that it must be shown by a preponderance of the evidence, and he fully explained to them what is meant by the preponderance of the evidence in the trial of cases. This properly covered every element embraced in this request which was pertinent to the issue involved.

Defendant also asked that the jury be directed that in law knowledge of one or two negligent acts of Demorrow in the line of his duty as such foreman did not constitute knowledge of his incompetency. The object of this requested instruction was evidently to inform the jury that knowledge of one or two acts tending to show that Demorrow imperiled the safety of persons working under him did not establish that defendant Rad knowledge o-f Ms incompetency. The phraseology includes only Ms negligent acts, and thus excludes acts due to Ms incompetency respecting his duties, and hence, if submitted to the jury as requested, would erroneously have restricted the effect of the evidence tending to show he imperiled the safety of those working under him to proof of his negligence instead of his incompetency. This renders the requested instruction objectionable, and it was properly refused by the court.

It is contended that the seventh question as framed and submitted is too indefinite and uncertain to determine the issue of proximate cause in the case. The specific objection is that the ^question so combines Demorrow’s want of care on the occasion in question and his incompetency to perform his duty that it is impossible to ascertain which of these elements the jury found to be the proximate cause of plaintiff’s injury. In submitting this to them the jury were informed that they would not be justified in answering it in the affirmative by merely finding that Demorrow failed to exercise ordinary care, nor by the mere finding that he was incompetent, but that if they found that the plaintiff’s injury was caused by an act of Demorrow, “an incompetent servant,” and that “such injury was the result of such incompetence of Demorrow, then if you find that that was the proximate cause of the injury, your answer to this question will be ‘Yes.’ ” This direction by the court removed any uncertainty involved in the question. An affirmative answer to the question under this instruction could only follow upon the finding by the jury that Demorrow’s incompetency was the proximate cause of plaintiff’s injury.

The evidence referred to on which plaintiff relied to show Demorrow’s incompetency for a proper performance of his duties and that defendant had knowledge thereof, together with the other facts and circumstances bearing on these questions in the case, was sufficient to warrant the jury in finding1 that at the time of plaintiff’s injury he was not competent to perform the duties of foreman of the rigging crew and that defendant had knowledge thereof.

Defendant requested that the jury be specifically required to find whether plaintiff actually knew, or under the circumstances proven in the exercise of ordinary care ought to have known, of Demorrow’s incompetency. This request was refused, and the instruction on the question of plaintiff’s contributory negligence did not specifically cover this phase of the case. The court’s refusal to submit the requested question and the omission to give the appropriate instruction on this question is urged to have resulted in a failure to have the jury determine the issue of plaintiff’s assumption of the risk incident to the negligence charged. It is claimed that plaintiff served under and with Demorrow a sufficient length of time to apprise plaintiff of his‘incompetency. Counsel point to no evidentiary facts tending to support such claim, aside from the fact that plaintiff worked in Demorrow’s rigging crew for some time before the accident. Nor has our examination of the record disclosed any evidence tending to support this contention. There is no evidence showing plaintiff had knowledge of any of the specific acts in evidence tending to show such ineompetency. So far as disclosed, it appears that plaintiff did not work regularly with Demorrow as a member of the rigging crew until two or three weeks immediately preceding the accident. His employment outside of the rigging crew did not bring him into sufficiently close contact with Demorrow’s occupation to warrant the inference that he learned how he performed his duties. There is nothing in the situation thus presented to furnish a basis for a finding that plaintiff in the exercise of ordinary care ought to have known of Demorrow’s incompetency.

We find no error in the record.

By the Qourt. — Judgment affirmed.