Curran v. A. H. Stange Co.

74 N.W. 377, 98 Wis. 598, 1898 Wisc. LEXIS 186

• Court: Wisconsin Supreme Court
• Decided: March 1, 1898
• Status: Published

Opinion

WiNslow, J.

It is claimed that this judgment should be reversed: (1) For failure to grant a nonsuit, or, in default thereof, to direct a verdict for the defendant; (2) for errors in the admission of evidence; (3) for error in refusing to give certain proposed, instructions; (4) for errors in instructions given; (5) for error in the form of question 10 in the special verdict; (6) for failure to submit all the issues; and (1) for failure to grant a new trial. These questions will be considered in the order indicated.

1. It is claimed in the appellant’s brief, although the claim was practically abandoned at the argument, that there was not sufficient testimony to show that the sawyer, Brown, ■was incompetent, but rather that he was out of practice, so to speak, by reason of the fact that he had not operated a saw carriage for four years. "We are satisfied, however, that the evidence is amply sufficient to justify the verdict of the jury that Brown was incompetent, at the time of the accident, to handle a carriage with that skill which such work evidently requires. Whether such incompetency arises from mere lack of practice for several years, or from the fact of never having operated a carriage at all, can make no difference.

But the defendant claims that, even if the evidence was sufficient on this point, still that the plaintiff assumed the risk; that after running the first night with Brown he had ascertained Brown’s incompetency; that the promise to replace Brown with another sawyer, alleged to have beén made in the morning, was necessarily a promise to make that ■change at once; that the change not having been made when the plaintiff went to work at night, and the plaintiff knowing that fact, he could not rely upon the promise any further, ■but, by going to work again with Brown, assumed the risk. The further contention is made that, if Brown was incompetent, the risk which the plaintiff ran was so great and imminent that he was not justified in working at all on the second evening with Brown as sawyer, and that if he did so he voluntarily assumed the risk. Both of these propositions have been negatived by the jury, and we think there was sufficient evidence upon which the jury might rightly base tbeir findings. We do not think that it can be said, as matter of law, that the risk of remaining upon the saw carriage with Brown as sawyer was so immediate and imminent that the plaintiff would be required to quit work at once or be held to have assumed the risk. It may well be that the plaintiff thought, and that a reasonable man would think, that by exercising a little more than usual care he could perform his duties.upon the saw carriage safely, notwithstanding the erratic movements of the carriage. The case is certainly not like that of Erdman v. Illinois Steel Co. 95 Wis. 6, where there was a cracked saw, every revolution of which was fraught with the most imminent and deadly danger. Nor can it be considered, as matter of law, that the promise to place a new sawyer in Brown’s place expired by limitation before the plaintiff went to work on the second evening. We think that it was properly a question for the jury to say whether, under all the circumstances, a reasonable time had elapsed for the change to be made at the time the plaintiff was injured.

2. The plaintiff was asked why he went to work upon the second night, after seeing Brown there as sawyer, and replied, under objection, that he thought that Elsen had not had time to get a setter to put in Eowler’s place, and that he would be there at any minute with a new setter, and then put Fowler in Brown’s place, and so he went onto the carriage; that in a short time the day setter came, and took Fowler’s place, and Fowler went down, stairs, and he (the plaintiff) thought that Elsen had sent for him to make some arrangement for him to do the sawing, and so he (the plaintiff) continued to work, relying upon the promise to make the change. The admission of this evidence is claimed to be error. The question was, on this branch of the case, whether the plaintiff was justified in working with Brown in reliance upon the promise to put in a new sawyer, and necessarily all the facts and circumstances surrounding the plaintiff at the time be commenced to work were properly admissible, as explaining why be went to work and whether bis act was reasonable. But it is said that it was improper to allow him to state bis mental conclusions upon these facts. We do not think, however, that this objection can prevail. The plaintiff certainly was entitled to state that he was still relying upon the promise. This was, in effect, the statement merely of a condition of mind or mental conclusion, and the fact that it is somewhat elaborated, in connection with the circumstances before his eyes, is not prejudicial.

Two physicians were’called, who treated the plaintiff for his injuries, and who gave testimony, based in. part upon the-statements of the plaintiff, as to his pains and feelings, made for the purpose of medical treatment. The admission of this testimony is now claimed as error. This subject, however, was fully reviewed in Keller v. Gilman, 93 Wis. 9, where this class of testimony was held to be competent.

It is objected that the plaintiff’s medical witnesses were allowed to guess at the character and permanency of the plaintiff’s injuries. One of the physicians was asked whether, in his opinion, the plaintiff’s injuries were permanent, and he answered that, so far as he was able to know, he would say they were permanent. A motion to strike out the answer was overruled. It is said that this is in violation of the rule that damages for permanent injuries can only be allowed where the evidence shows that they are reasonably certain to be permanent. Hardy v. Milwaukee St. R. Co. 89 Wis. 183. The objection is untenable. The fact that the jury must find reasonable certainty from all the" evidence does not make it necessary that every witness must testify to the fact of reasonable certainty. The probative force of testimony to the effect that injuries are probably permanent may be weak, but weak testimony is not, on that account alone, inadmissible. There may be other evidence of facts and circumstances which supplements and strengthens it to the necessary point of certainty. Crites v. New Richmond, ante, p. 55.

Again, it is urged that it was error to allow plaintiff to testify that his eyesight-and hearing were impaired since his •injury; because no special claim of such injuries was made in the pleadings. The complaint, after charging that numerous injuries to the head, back, and spine were received by his fall, alleges that “other serious injuries were done him.” This we regard as sufficient to justify evidence of injuries ■other than those specifically named. The allegation is indefinite, and probably was open to a motion to make more definite and certain, but, in the absence of any such .motion, •it was not error to admit evidence of injuries to the eye and ear under it.

3. The defendant requested the following .instruction, which was refused: “You are not bound, as matter of law, to credit the testimony of the plaintiff, even in matters where he is uncontradicted by any witness.” This is undoubtedly a correct legal proposition, and its refusal, under some circumstances, might well be error. In this case, however, there seems little or nothing to which it could rightfully apply with any force. There was really very little conflict as to matters of fact in the case, except as to the alleged promise to discharge Brown, and upon this subject the jury were properly instructed, as we shall see. We can discover no questions in the case upon which this instruction would have been useful, and hence there wTas no error in the refusal to give it.

4. But it is said that there was affirmative error in the charge upon the subject of the preponderance of the evidence. The trial judge, after instructing the jury that they were to answer the questions according to the fair weight and preponderance of the evidence, uninfluenced by sympathy or prejudice, charged that in answering each question they should consider and review all the evidence bearing thereon on either side, and that their answer should reflect, as near as possible, their deliberate conclusion based upon such evidence. He further charged as to the alleged promise by Elsen to discharge Brown: “ Each has given his version of what was said. The burden of proof is upon the plaintiff to show, by the fair preponderance of the evidence, that such promise was in fact made, and, before you will be warranted in finding an affirmative answer to this question, you must find that the evidence preponderates in his favor; that is, in favor of the plaintiff’s version. You should consider all the •circumstances and surroundings, the interest, if any is shown, ■each witness has in the result of this suit, and make your answer in accordance with the eonvietion that comes to you ■of what the truth really is. If you believe, and so find, that the evidence preponderates in plaintiff’s favor, and his version of what was said on the morning of August 6 th is true, then your answer to this question should be in the affirmative. If the evidence as to what was said is evenly balanced, ■or you believe Elsen’s version of it, then your answer should be in the negative.” If the instruction to the effect that the jury should find a verdict simply upon the fair preponderance of the evidence stood alone, it seems that it would be ■reversible error, under rules frequently stated by this court. Gores v. Graff, 77 Wis. 174; Pelitier v. C., St. P., M. & O. R. Co. 88 Wis. 521; Guinard v. Knapp-Stout & Co. Company, 95 Wis. 482. There should be some instruction, in ■effect, that the jury are to be satisfied that the fact exists in order to justify a verdict. The charge, however, should ■all be construed together. In the present case, in addition to the charge that they should find a verdict upon preponderance of the evidence, the jury were plainly told, in the same connection, that they should make their answers in accordance with their conviction of what the truth really was, .and that, if they believed that the plaintiff’s version was true, they should answer in the affirmative. By these clauses they are told that they are to answer according to their conviction or belief from the evidence. These are fully as strong expressions as to say that -they must be satisfied from th& evidence, and they must naturally have been so understood by the jury. Taken as a whole, we do mot think the charge upon this subject can be called erroneous.

A further criticism upon the charge is made to the effect that the court informed the jury what effect their answers would have upon the plaintiff’s right of recoveiy. Examination of the charge shows that this criticism is unfounded. The court gave the jury some general instructions as to what would constitute an assumption of risk by the plaintiff, and as to the general duties -of mill owners toward their employees, but nowhere told them what would be the effect of their answer to any question upon the question of the defendant’s liability.

5. Question No. 10 of the special verdict reads as follows: “ Was the danger to be apprehended from riding the carriage in question, under Brown’s management as sawyer, so-great, immediate, and constant that a reasonably prudent person, acting in the light of all the circumstances under which the plaintiff acted, ought not to subject himself to it?” It is now urged that the word “would” should have been used in the question instead of the word “ought.” It is quite apparent that “ would” is the strictly proper word, but was it error to use the word “ought”? We think not, for tAvo reasons: (1) The court carefully and correctly charged the jury upon this question that if they found that the risk “ was so great, immediate, and constant that a reasonably prudent man, under all the circumstances, would not have continued to ride the carriage, then it is your duty to say so by writing the proper answer to this question.” (2) Substantially this same question was asked to be-submitted to-the jury by the defendant’s counsel, with the Avord “ ought” instead of “would” in it. While the Avord “ought” is inaccurate, it will be found frequently used in the text-books, and decisions as the proper word in this connection, and as the equivalent of “ would,” and we do not regard its use, under the circumstances here, as prejudicial.

The rights of a servant who continues work on the faith of a promise to remove a specific cause of danger are considered in a note to Illinois Steel Co. v. Mann (170 Ill. 200), in 40 L. R. A. 781.— Rep.

6. It is urged that there should have been a general question as to whether the plaintiff was guilty of contributory negligence. Ve find nothing in the record to call for any such finding. The only claim made upon the trial seems tp have been that the plaintiff assumed the risk, and this issue was properly submitted and determined.

Y. One of the plaintiff’s physicians qualified himself to testify as a medical expert by testifying that he was a graduate of both Rush and Hahneman medical colleges, in Chicago. Upon the motion for a new trial, the defendant introduced an affidavit from the president of the Rush Medical College stating that the doctor was not a graduate of that college. No affidavit to the contrary was introduced, and it is now said that a new trial should have been granted upon the ground that this was newly discovered evidence. There are two answers to this objection: (1) There is nothing to show that the fact was learned after the trial of the case closed 5. and (2) the evidence, at most, was merely impeaching evidence. Hooker v. C., M. & St. P. R. Co. 76 Wis. 542.

Upon the whole record, we have found no reversible errors.

By the Oowrt.— Judgment affirmed.

BaedeeN, J., took no part.