Zentner v. Oshkosh Gas Light Co.

132 Wis. 447 | Wis. | 1907

Cassoday, O. J.

This case was here on a former appeal and the judgment of nonsuit was reversed and the cause remanded for a new trial. 126 Wis. 196-202, 105 N. W. 911. The ground on which such nonsuit was granted was that the deceased was guilty of contributory negligence or had assumed the risk. Two members of this court were of the opinion that such ruling was correct. It-was held, however, by a-majority of the court that the evidence was sufficient to take the case to the jury on the question whether the defendant was negligent in not shutting off the high potential current while making repairs, and also on the question whether the deceased was guilty of contributory negligence, or that form of it known as the assumption of risk. The opinion of this court on that appeal declares that the deceased “assumed the usual and ordinary risks incident to the employment in which he was engaged, hut did not assume unusual or extraordinary risks, unless he in fact Tcn&w of them, or hy the exercise of ordinary care and prudence ought to have known of them.” 126 Wis. 199, 105 N. W. 913. The opinion on that appeal further states that “three expert witnesses testified that it is usual in making such repairs to shut off the high potential current from the wires, and there is no evidence to the contrary; nor can we say that this evidence is incredible or contrary to common knowledge.” 126 Wis. 199, 105 N. W. 913. It also states that the deceased “had no actual knowledge of such extraordinary risk so far as appears from the evidence, and the circumstances are not so clear that we can say as matter of law that he, in the exercise of ordinary care, ought to have known. The question is one upon which there may be conflicting inferences, and hence properly a question for the jury.” 126 Wis. 201, 105 N. W. 913. The “unusual or extraordinary risk” thus referred to was the leaving of the current on while making such repairs; and it was held that even that was assumed if the deceased had actual knowledge of .the fact or ought to have known it by the exercise of ordinary care. On the last trial such questions were all submitted to the jury and were all answered favorably to the plaintiff except the third, by which the jury expressly found that the deceased, did “know the current was on while he was making such repairs.” The correctness of that finding is not questioned.

On the last trial, and to meet the situation thus presented by the decision of this court, the defendant presented as witnesses the two engineers in its employ at the time of the death of the deceased and for years immediately prior thereto, and they both testified to the effect that if the current is turned off the engineer in charge of the plant at the time knows it, and that during the time they had been so employed by the defendant the current had never been turned off for the purpose of making outside repairs. Such testimony is undisputed, and so the court charged the jury that:

“Risks of employment are always assumed when the servant knows or ought to have known the dangers incident to the conditions under which he works, and all ordinary risks and hazards of the occupation in which he is engaged are assumed, whether the servant appreciates them or not. Zentner, by engaging in the work of lineman for the defendant company, assumed the ordinary risks incident to such employment. The evidence is undisputed that it was the custom of the defendant to keep the current on while repairs were being made on the high potential line under all ordinary conditions and circumstances. Zentner must be presumed to have known of this custom.”

The jury manifestly appreciated the importance of the question, for, on returning to the court, they requested that the court’s instructions on the third question of the special verdict should he read to them, and the foreman then asked the court: “Is not that a question of vital importance as bearing upon the other questions?” The court replied to the effect that “it was for the jury to determine the facts upon the evidence under the instructions of the court, and for the court to render judgment upon the facts found by the jury.” Thus it appears, not only from the deliberate finding of the jury but from the undisputed evidence, that the deceased did “know the current was on while he was making such repairs.” And so we are squarely confronted with the question propounded by Mr. Justice Keewie on the former appeal: “Did the evidence so conclusively establish contributory negligence, or that form thereof known as assumption of risk, on the part of deceased, as to warrant the court in taking the case from the jury?” According to the undisputed evidence and the charge of the trial court above quoted it did. There seems to be no escape from the conclusion that the deceased was guilty of that phase of contributory negligence known as the assumption of risk. Schlemmer v. Buffalo, R. & P. R. Co. 205 U. S. 1, 27 Sup. Ct. 407. The facts mentioned being undisputed and as declared by the trial court, it was manifest error to refuse the defendant’s motion to change the answer to the fourth question of the special yerdict from “No” to “Yes” and then enter judgment thereon in favor of the defendant.

By the Court. — The judgment of the circuit court is reversed, and the cause is remanded with direction to enter judgment in favor of' the defendant as indicated in this opinion.