The following opinion was filed March 10, 1908:
Dodge, J.
The jury in this case found plaintiff guilty of contributory negligence which, by virtue of the instructions, might have been based upon that particular phase of contributory negligence more commonly designated assumption of the risk. This finding is assailed as unsupported by the evidence. We think there are many theories, any one of which might have been adopted by the jury and found support in the evidence, to justify an inference either of the assumption of the risk from which plaintiff suffered or of negligent acts on his part. The method of the happening of the accident is surrounded by complications and uncertainty to such an extent as almost to’ throw the question of defendant’s proximate negligence into1 the field of conjecture. We cannot know what irregular operation of the machine the jury decided caused the hammer to fall, nor what negligence of defendant was responsible therefor. Certain testimony is claimed by the plaintiff to show that the spring, the function of which was to throw the clutch into engagement with the hammer, was defectively bolted to the iron rod through which it acted, and that therefore it became disen-. [451]*451gaged and thus failed to work. But this holt and. spring were directly within plaintiff’s vision, especially at the time when he and his companion adjusted the dog before commencing work on the machine the morning of the injury, ■and from the character of the defects described in the adjustment of the bolt the jury might have inferred either that it was so obvious that plaintiff did in fact see it and know the peril therefrom and therefore assumed it, or they may have found that it would have been negligence in him not to observe it. Again, there is some evidence to show that the machine was deranged in that portion of it which raised the hammer by means of two pulleys which, by automatic mechanism, were compressed against a vertical plank and by friction lifted it, and that these pulleys may, by reason of the defective setting up of the machine, have become separated irregularly and before the hammer had been lifted sufficiently to rest upon the clutch. They had the machine and all these parts before them, as did the trial judge, and we are unable to say that they may not have deemed that condition so obvious that either plaintiff did, or ought to have, observed it, and that he was guilty of negligence in operating the machine in its defective condition. It is in proof definitely that the machine was out of vertical adjustment, being shifted on its base somb two and a half inches, and there is plenary evidence from which the jury might have found that plaintiff knew that fact. Again, the jury might well have believed, from the machine itself, that plaintiff’s testimony that he observed that the clutch did in fact engage the hammer before he reached his hand under it to remove the object being operated on, was wholly incredible, and, from the very fall of the hammer itself, might have believed that the clutch could not have gone into engagement, and that it was negligence for plaintiff to insert his hand below the hammer until he had assured himself of such engagement. Then of course there is the mechanical probability that, if the clutch [452]*452engaged, the Rammer so that it rested upon it, the- hammer could not fall, as a matter of physical possibilities, without pressure on. the treadle, and therefore the jury may hare inferred as a fact that plaintiff was mistaken in his testimony that he did not press that treadle; an act which, in connection with the insertion of his hand, of course might hare been deemed contributory negligence. We suggest these among several theories for which the jury might have found justification in the evidence, and conclude, therefore, that their finding of contributory negligence was not so- unsupported by any credible evidence that we can set it aside after it has received the approval of the circuit judge, who had vastly better opportunity to understand the complicated description and working of this machine than we can have.
Error is assigned because the court excluded evidence from other employees of a general custom for the operator to insert his hand below the hammer to remove the object being operated on, instead of removing it with tongs, which latter method was entirely feasible. We see no very good reason for rejecting evidence of such custom as bearing upon the care ordinarily exercised by such operatives. Perhaps the court considered it improper because it fairly appeared by plaintiff’s own evidence that any custom existing at the time of his injury amongst the four or five men who at different times operated this hammer was due to defendant’s own act in advising or instructing such operatives so to do. He seems to have been older in such service than most of the others, and he testified that at several times, when new men were first put to work on the machine, he advised or instructed them to so- operate it. But even though we conclude that such evidence of custom was proper to- be considered by the jury, we cannot think prejudicial error resulted from the exclusion of these questions, because man after man of those who customarily operated the hammer was permitted to testify that he was accustomed to use his hand [453]*453instead of tongs in tbe manner described; tbns if, by a somewhat technical distinction between permitting each individual to testify to his own custom and permitting him to' testify to general custom in the factory, error was committed, yet the material fact was established practically without dispute that generally the operatives of that machine had for several years been accustomed to insert their hands below the hammer as did plaintiff on this occasion.
In the same connection error is assigned upon the exclusion of questions to several of these operatives whether they had been instructed by the foreman or superintendent SO' to act. We see no error in this exclusion. Such instructions were res inter alios acta. The plaintiff was permitted to testify that he himself had received such instructions, and did so without contradiction.
Complaint is made of a part of the charge with reference to assumption of the risk, to the effect that it was not necessary that the defendant should have pointed out tO' the plaintiff every possible way in which he might have been injured. In this we see no error. It was said in connection with an entire charge to the general effect that plaintiff was expected to use his ordinary faculties and to discover that which was obvious to him in view of his experience and knowledge of the machine and other circumstances. It is of course true that any failure on the part of the defendant to point out a defect is utterly immaterial if plaintiff himself did in fact know that defect or if it was so obvious that by ordinary care and diligence in observation he would have observed it. 'The charge is not open to the suggested criticism that it imposed upon the plaintiff a duty to search for hidden or latent defects, but merely required him to “exercise his senses, to apply his experience and general knowledge to discover if such dangers did exist in connection with the circumstances by which he was surrounded when he undertook his work.” Hence we cannot think it error to have denied a requested [454]*454instruction that his duty did not require him to search for hidden or concealed defects which were not open and obvious to him.
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The following opinion was filed March 10, 1908:
Dodge, J.
The jury in this case found plaintiff guilty of contributory negligence which, by virtue of the instructions, might have been based upon that particular phase of contributory negligence more commonly designated assumption of the risk. This finding is assailed as unsupported by the evidence. We think there are many theories, any one of which might have been adopted by the jury and found support in the evidence, to justify an inference either of the assumption of the risk from which plaintiff suffered or of negligent acts on his part. The method of the happening of the accident is surrounded by complications and uncertainty to such an extent as almost to’ throw the question of defendant’s proximate negligence into1 the field of conjecture. We cannot know what irregular operation of the machine the jury decided caused the hammer to fall, nor what negligence of defendant was responsible therefor. Certain testimony is claimed by the plaintiff to show that the spring, the function of which was to throw the clutch into engagement with the hammer, was defectively bolted to the iron rod through which it acted, and that therefore it became disen-. [451]*451gaged and thus failed to work. But this holt and. spring were directly within plaintiff’s vision, especially at the time when he and his companion adjusted the dog before commencing work on the machine the morning of the injury, ■and from the character of the defects described in the adjustment of the bolt the jury might have inferred either that it was so obvious that plaintiff did in fact see it and know the peril therefrom and therefore assumed it, or they may have found that it would have been negligence in him not to observe it. Again, there is some evidence to show that the machine was deranged in that portion of it which raised the hammer by means of two pulleys which, by automatic mechanism, were compressed against a vertical plank and by friction lifted it, and that these pulleys may, by reason of the defective setting up of the machine, have become separated irregularly and before the hammer had been lifted sufficiently to rest upon the clutch. They had the machine and all these parts before them, as did the trial judge, and we are unable to say that they may not have deemed that condition so obvious that either plaintiff did, or ought to have, observed it, and that he was guilty of negligence in operating the machine in its defective condition. It is in proof definitely that the machine was out of vertical adjustment, being shifted on its base somb two and a half inches, and there is plenary evidence from which the jury might have found that plaintiff knew that fact. Again, the jury might well have believed, from the machine itself, that plaintiff’s testimony that he observed that the clutch did in fact engage the hammer before he reached his hand under it to remove the object being operated on, was wholly incredible, and, from the very fall of the hammer itself, might have believed that the clutch could not have gone into engagement, and that it was negligence for plaintiff to insert his hand below the hammer until he had assured himself of such engagement. Then of course there is the mechanical probability that, if the clutch [452]*452engaged, the Rammer so that it rested upon it, the- hammer could not fall, as a matter of physical possibilities, without pressure on. the treadle, and therefore the jury may hare inferred as a fact that plaintiff was mistaken in his testimony that he did not press that treadle; an act which, in connection with the insertion of his hand, of course might hare been deemed contributory negligence. We suggest these among several theories for which the jury might have found justification in the evidence, and conclude, therefore, that their finding of contributory negligence was not so- unsupported by any credible evidence that we can set it aside after it has received the approval of the circuit judge, who had vastly better opportunity to understand the complicated description and working of this machine than we can have.
Error is assigned because the court excluded evidence from other employees of a general custom for the operator to insert his hand below the hammer to remove the object being operated on, instead of removing it with tongs, which latter method was entirely feasible. We see no very good reason for rejecting evidence of such custom as bearing upon the care ordinarily exercised by such operatives. Perhaps the court considered it improper because it fairly appeared by plaintiff’s own evidence that any custom existing at the time of his injury amongst the four or five men who at different times operated this hammer was due to defendant’s own act in advising or instructing such operatives so to do. He seems to have been older in such service than most of the others, and he testified that at several times, when new men were first put to work on the machine, he advised or instructed them to so- operate it. But even though we conclude that such evidence of custom was proper to- be considered by the jury, we cannot think prejudicial error resulted from the exclusion of these questions, because man after man of those who customarily operated the hammer was permitted to testify that he was accustomed to use his hand [453]*453instead of tongs in tbe manner described; tbns if, by a somewhat technical distinction between permitting each individual to testify to his own custom and permitting him to' testify to general custom in the factory, error was committed, yet the material fact was established practically without dispute that generally the operatives of that machine had for several years been accustomed to insert their hands below the hammer as did plaintiff on this occasion.
In the same connection error is assigned upon the exclusion of questions to several of these operatives whether they had been instructed by the foreman or superintendent SO' to act. We see no error in this exclusion. Such instructions were res inter alios acta. The plaintiff was permitted to testify that he himself had received such instructions, and did so without contradiction.
Complaint is made of a part of the charge with reference to assumption of the risk, to the effect that it was not necessary that the defendant should have pointed out tO' the plaintiff every possible way in which he might have been injured. In this we see no error. It was said in connection with an entire charge to the general effect that plaintiff was expected to use his ordinary faculties and to discover that which was obvious to him in view of his experience and knowledge of the machine and other circumstances. It is of course true that any failure on the part of the defendant to point out a defect is utterly immaterial if plaintiff himself did in fact know that defect or if it was so obvious that by ordinary care and diligence in observation he would have observed it. 'The charge is not open to the suggested criticism that it imposed upon the plaintiff a duty to search for hidden or latent defects, but merely required him to “exercise his senses, to apply his experience and general knowledge to discover if such dangers did exist in connection with the circumstances by which he was surrounded when he undertook his work.” Hence we cannot think it error to have denied a requested [454]*454instruction that his duty did not require him to search for hidden or concealed defects which were not open and obvious to him.
Another objection to the charge upon the question of con* tributary negligence was that the court instructed the jury that a failure in even the slightest degree to exercise ordinary care would require them to answer the question in the affirmative. The complaint is that they should not so answer unless the want of ordinary care contributed to his injury. The rule of law is of course undoubted that only for want of ordinary care contributing proximately to- his injury can the plaintiff be debarred from his right to recover (Mauch v. Hartford, 112 Wis. 40, 57, 87 N. W. 816), and we have held that requests to instruct in the same words as those used by the court in its charge might properly be refused, without error, because they did not embody that qualification. Cummings v. Nat. F. Co. 60 Wis. 603, 18 N. W. 742, 20 N. W. 665; Lyon v. Grand Rapids, 121 Wis. 609, 99 N. W. 311; Lynch v. Waldwich, 123 Wis. 351, 101 N. W. 925. But that was predicated upon the statutory requirement that an instruction must be full and correct in itself, so that the court can properly give it in the exact words of the request, in order that’ error may be predicated upon its rejection. Of course no such strict rule applies to the charge of the court. He may convey one idea or one element of the rule of law in one portion of his charge disassociated from other portions or elements, so long as those other elements are in fact conveyed to the minds of the jury as necessary to be found by them. We think, in view of the -fact that the question required the jury to find only negligence which did in fact contribute, and in view of the association of this portion of the charge with other portions thereof significant of a purpose merely to confine the terms-used to definition of conduct which would, or would not, constitute want of ordinary care, that the mere failure to l’epeat [455]*455in the instruction the necessity of contribution could not serve to mislead the jury into the idea that they need not find it as an element in answering the question.
After careful examination of the evidence and the instructions we cannot doubt that the answer of the jury on tbe question of contributory negligence was the result of deliberate and intelligent consideration of the subject under such fair explanation of their duty in that regard as was sufficient to protect the rights of the plaintiff, and therefore conclude that we should not be justified in setting aside that conclusion or reversing the judgment.
By ihe Court. — Judgment affirmed.