Zarnik v. C. Reiss Coal Co.

133 Wis. 290 | Wis. | 1907

KeewiN, J.

1. The first contention made by appellant is that the court erred in denying defendant’s motions for non-suit, directed verdict, to amend the verdict, and for judgment notwithstanding the verdict. This argument involves the sufficiency of the evidence to support the findings of the jury. The negligence relied upon was the defective condition of the car, in consequence of which the car door became open at a point before the dumping place was reached and dumped the coal upon the plaintiff. The evidence tends to establish that the lever at the back of the car used for hand dumping did not have sufficient bend so as to admit of proper locking of the door latch of the car, in consequence of which, while the car was running upon the track, the door became open and suffered the load to dump upon plaintiff. There is evidence that a door latched or locked in the manner in which the car door in question was at the time of the injury was defective, dangerous, and liable to come open while the car was running upon the track; that the operation of the car on the track and around the curve or loop, and the strain, jar, and jerks incident to such operation, would cause the door thus improperly latched or fastened to open and dump the coal. The plaintiff produced Mr. Biermann, a witness, who testified that on the morning of the injury and before the car went out he informed the foreman of defendant, Mr. Adler, that the car was defective, and told him that “the hooks don’t catch enough on the door,” and in reply Mr. Adler said: “'She is all right. Let her go.” Mr. Adler denies this, and the jury found in answer to the fifth question that Mr. Bier-mann did not inform Mr. Adler that the lever was defective. It is argued by counsel for appellant that this finding negatives any actual knowledge on the part of defendant, and that the jury found the alleged conversation between Bier-mann and Adler never took place, and that by the sixth question the jury found that defendant had no actual notice or knowledge of the defective condition of the lever in time to have repaired it or to have taken the car off the track before the plaintiff was injured. Counsel for defendant, therefore, concludes that because the evidence shows inspection on Saturday before the injury, and because of findings 5 and 6, the answer of the jury to question 6-J, to the effect that the representative of defendant by the exercise of ordinary care and vigilance would have learned of the defect in the lever in time to have repaired it or taken the car from the track, cannot be sustained, and hence the answer to question 6|: should have been changed. We cannot agree with counsel in this contention. The answers to the fifth and sixth questions merely find that Biermann did not inform Adler of the defect in the lever. It does not appear that Biermann testified that he informed Adler that the lever was defective. He testified that he told him that he did not think the car was all right, and, on being asked why, said, “The hooks don’t catch enough on the door.” The jury found that Biermann did not inform Adler that the lever was defective, and this was strictly correct under Biermann’s evidence. He simply informed Adler that he thought the car was not all right because the hooks did not catch enough on the door. Now, it is very clear from all the evidence that the jury would be warranted in finding that a proper inspection would have revealed the defect in the lever, to say nothing of the evidence of Biermann, which the jury by their findings did not necessarily discredit. So we think the position of counsel for appellant that the verdict is inconsistent as it stands, and that the answer to question 6i is no-t supported by the evidence and should be changed, is not well taken.

2. Error is assigned in the submission of questions 8 and 9 to the jury and refusal to submit the following:

“Under all the evidence in the case, and in view of the knowledge of the plaintiff of the manner and method of conducting the work of the defendant upon the dock where he was engaged when injured, ought a person of ordinary care ■and prudence to have anticipated that an accident such as happened to the plaintiff was liable to occur ?”■

It seems to us that questions 8 and 9 presented fairly the questions involved to the jury and more clearly than the request of defendant. They appear to have been answered intelligently by the jury, and we find no error in their submission nor in the refusal to submit the one requested by defendant.

The main contention of defendant under this head is that the question of assumption of risk was not fairly submitted to the jury. The question whether plaintiff knew or ought to have known o.f the defect in the lever was submitted to the jury in the eighth question, and whether he was guilty of any want of ordinary care contributing to the injury was submitted in the ninth question. These questions fully covered the assumption of risk, and the jury were charged that assumption of risk was a species of contributory negligence. It is also contended that the court should have submitted the question asked by defendant, namely, “Was the injury received by the plaintiff due to an unavoidable accident?” The jury were fully instructed upon this question, and no error was committed in refusing to submit it as a part of the special verdict. Hennesey v. C. & N. W. R. Co. 99 Wis. 109, 14 N. W. 554; Johnson v. St. P. & W. C. Co. 126 Wis. 492, 105 N. W. 1048.

8. A very vigorous attack is made upon the charge of the court by counsel for defendant. It is claimed in the first place tbat tbe court informed tbe jury of tbe effect of their answers to the questions presented in tbe special verdict.. After a careful examination of tbe charge we cannot find tbat any reversible error was committed in tbis regard, and after-all tbat bas been said upon tbis subject by tbis court further discussion would seem unnecessary. We call attention to Banderob) v. Wis. Cent. R. Co., ante, p. 249, 113 N. W. 738, where the authorities are collected and discussed. Tbe charge-is also criticised because the court told tbe jury tbat it was the duty of defendant to make a proper inspection, on tbe ground tbat there was no evidence tbat tbe inspection was not proper,, and counsel in bis argument assumes tbat there was no question for tbe jury on tbis point. But in tbis we think counsel is in error. The. inspection, as shown by tbe evidence, was-quite general, and from it tbe jury might well'have found tbat, if a proper inspection bad been made, such inspection would have revealed tbe defect in tbe lever, if one in fact existed. Tbe question whether or not proper inspection bad been made, upon tbe evidence, was for tbe jury, and there was-no error in tbe charge in that respect. Tbe most serious question to our minds under tbis bead is whether tbe court erred in that portion of tbe charge taken from tbe rule laid down in-Cummings v. Nat. F. Co. 60 Wis. 603, 612, 18 N. W. 745, 20 N. W. 665, tbat “when tbe thing is shown to be under tbe management of tbe defendant or bis servants, and tbe accident is such as, in tbe ordinary course of things, does not happen if those who have tbe management use proper care,, it affords reasonable evidence, in the absence of explanation-by tbe defendant, that tbe accident arose from want of care.”' Whether tbis instruction was applicable to tbe facts in this-case we shall not stop to consider, since we are convinced that, it worked no prejudice to tbe defendant. In tbe first place it. was given under tbe ninth question of tbe special verdict, respecting want of ordinary care on the part of the plaintiff, and tbe jury were told tbat in answering tbis question they

were to consider, among other things, whether the cause of the opening of the door was or was not an unavoidable accident, and that if such cause was unknown, or could not be definitely ascertained and determined, then so far as this case was concerned they should find that it was an unavoidable accident; but if they were satisfied that the door opened because of the defect in the lever, if such defect existed, then the cause is known and the accident did not result from an unknown cause. The court then gave the instruction from the Cummings Case, 60 Wis. 603, 612, 18 N. W. 142, 20 N. W. 665, above quoted, and followed it by the further instruction :

“I read that to you as assisting you in determining the law ■applicable to the question whether this opening of the door was or was not an unavoidable accident — whether it arose from an unknown cause or from a cause that can be traced and determined.”

The jury found upon sufficient evidence that the lever was defective, and that defendant ought to have known of such defect in time to have repaired it or taken the car off the track, and found in favor of plaintiff all facts necessary to entitle him to recover by reason of such defect. The defect which caused the injury was left in no uncertainty by the verdict, but was traced to a known cause. No effort was made by defendant to show that the lever was not defective or that such defect was not the proximate cause of the injury. The defendant did offer proof of inspection on the Saturday before the injury, but it is obvious that the jury found that the defect existed and proper inspection had not been made, else the defect would have been discovered before the car was put on the track. So the instruction under consideration, whether applicable to the facts of the ease or not, was not prejudicial, and therefore not reversible error.

4. Error is assigned because of the reception and rejection of evidence. The main contention under this head is that expert testimony was improperly admitted. The expert was ashed the following questions: “If the handle is perfectly straight, what effect does that have on the slide?” Also the following: “Would a ear door be reasonably safely locked if the catches held the latches on the door by half an inch, and the ear was subject to the general uses to which it is put in running upon these trestles and making this turn ?” Other questions of similar import were asked. The witness was permitted to answer these questions over defendant’s objections. It is urged by counsel for defendant that it was error to allow such answers, on the ground that they invaded the province of the jury; and Hamann v. Milwaukee B. Co. 127 Wis. 550, 106 N. W. 1081; Olwell v. Skobis, 126 Wis. 308, 105 N. W. 777, and Anderson v. Chicago B. Co. 127 Wis. 273, 106 N. W. 1077, are relied upon. The question turns on whether or not the evidence offered comes within the field of expert evidence. The scope of expert evidence is not restricted to matters of science, art, or skill, but extends to any subject in respect to which one may derive by experience special and peculiar knowledge. Hamann v. Milwaukee B. Co., supra. “Opinion evidence may properly be given as to the very point the jury are to decide,” when such point is within the field of expert evidence, when the questions are based upon undisputed facts or assumed facts warranted by the record. Maitland v. Gilbert P. Co. 97 Wis. 476, 72 N. W. 1124; Lyon v. Grand Rapids, 121 Wis. 609, 99 N. W. 311. We think this rule was not violated by the admission of the evidence under consideration. Cole v. Clarke, 3 Wis. 323; Daly v. Milwaukee, 103 Wis. 588, 79 N. W. 752; Stanwick v. Butler-Ryan Co. 93 Wis. 430, 67 N. W., 723 Northern S. Co. v. Wangard, 123 Wis. 1, 100 N. W. 1066; Ollwell v. Skobis, 126 Wis. 308, 105 N. W. 777; Schwantes v. State, 127 Wis. 160, 106 N. W. 237; Hamann ¶. Milwaukee B. Co. 127 Wis. 550, 106 N. W. 1081. The witnesses interrogated on the subject were machinists of wide experience. They bad made thorough examination of the ear and understood the relations of all the parts and the principles upon which they worked. It is quite clear that the jury could not judge as well as these experts respecting the safety of the defective lever, or whether a half-inch bearing of the catch was a sufficient locking.

We find no reversible error in the record.

By the Gourt. — The judgment below is affirmed.