The following opinion was filed October 24, 1916:
Marshall, J.
Errors are assigned on behalf of appellant because the court decided that the rock-crushing plant was in possession of Rewald at the time Engel was furnished his working place and at the time of the accident, and because answers given the jury were changed from being in favor of appellant so as to favor respondent.
[521]*521Tbe first four findings as made by tbe jury entitled appellant to recover. In submitting tbe question as to wbetber respondent furnisbed Engel a place of employment as safe as tbe nature of tbe employment would reasonably permit, and instructing in respect thereto, as was done, that if tbe guy cable was negligently fastened to tbe mast, such question should be answered in tbe negative, and not submitting any question on tbe precise point of wbetber respondent was in possession of tbe plant when tbe working place was furnisbed, obviously, it was held that there was no question, on tbe evidence, but that such possession existed and respondent was responsible for tbe safety of such working place. It is significant that tbe answer to tbe first question was not changed. So tbe verdict as corrected to harmonize with tbe views of tbe court, on its face, is to the effect that respondent did not perform its duty of furnishing Engel a suitable working-place. So tbe court must have held, in tbe end, that tbe question was immaterial because tbe plant was not in possession of respondent when tbe working place was furnisbed or when tbe accident occurred. If it were in such possession, and furnisbed such place, and tbe place was not safe, within tbe rule of tbe statute, at tbe start, or was rendered so by its operations, while tbe work was in progress, it cannot escape liability upon tbe ground that tbe immediate employer of Engel was an independent contractor. Jacobs v. Hershey L. Co. 124 Wis. 54, 102 N. W. 319, and similar cases relied upon by counsel for respondent, do not apply to such a situation, as they clearly show.
Wbetber an immediate employer is a mere agent or an independent contractor, under tbe rule in question, is not always free from difficulty. Tbe question is one of law where tbe facts are clear. It is unnecessary to point out here, 'if that copld safely be done, tbe precise scope of the rule. It is sufficient to say that it does not include a situation such as [522]*522existed in tbis case, if respondent was in possession of tbe working place when it was furnished, and it was then unsafe, or was subsequently rendered so by respondent’s operations.
Tbe final decision, as to possession of tbe plant, as counsel for respondent- contends, must, under tbe statute, bave all tbe force of a jury finding, since it is a matter wbicb was not submitted to tbe jury, and there was no request in that regard. However, its dignity is somewhat lessened from that wbicb it would otherwise possess because of tbe fact that, when the case was submitted, tbe evidence was fresh in mind, and tbe court’s attention was specially directed to tbe matter by an objection on behalf of respondent to submission of tbe first question, tbe conclusion was reached that tbe evidence so clearly showed possession of tbe plant in respondent as not to leave any issue in respect thereto for tbe jury.
In our judgment, from tbe record, tbe trial court was clearly right at first and clearly wrong in tbe end. It seems that tbe judge must bave overlooked tbe fact that Marker, who represented respondent, at no time testified that tbe latter did not take possession of tbe plant on tbe day be visited it and discovered that a change in tbe hopper was necessary; and confused tbe matter of possession by respondent with that of possession by Racine county. Marker testified, positively, that tbe plant bad not been turned over to tbe county at tbe time of tbe accident but not that it bad not been turned over to respondent.
Much is made on behalf of respondent of tbe fact that there were some trifling details of Rewald’s contract wbicb were not completed at tbe time in question, and that tbe trip button was not in place until that was done by Heidermann, on tbe day of tbe accident. Who was to locate tbe trip button was dealt with on tbe argument as if that was a vital matter, but it seems otherwise. It was tbe merest kind of a detail which any one could attend to in a few moments, and Marker testified that “To place tbis button in position would be our [523]*523duty, of course, to get tbe plant in complete operation, and not tbe duty of Eewald.” Tbe evidence is very definite to tbe effect that there was nothing of consequence for Eewald to do when Marker, with a .committee of tbe county board, and tbe employees of the county, visited tbe plant two days before tbe accident. Marker testified that everything but changing tbe hopper bad been done. That is, that tbe contract made with Eewald to construct tbe plant was substantially completed when be was engaged to do tbe extra work of changing tbe hopper.
We will not spend time to discuss tbe evidence at length. It satisfies us that respondent, by its agent, Marker, took possession of tbe plant on tbe day tbe arrangement was made for tbe extra work and would then have turned tbe property over to tbe county bad it not developed that tbe plan for tbe hopper was defective. Therefore, in employing Eewald to change tbe hopper, and while that was being done, operating tbe drag-line excavator, respondent was responsible for safety of tbe working place in question. That it was not as safe as tbe nature of tbe employment would reasonably permit, there was ample evidence. That being tbe case, tbe court clearly erred in changing tbe answer to tbe question as to whether tbe failure to furnish a suitable working place was a proximate cause of the deceased’s injury and death, unless Heider-mann was a mere interloper, instead of an agent of respondent by authority of Marker, in operating tbe drag-line excavator. That such authority existed was found by tbe jury, upon ample evidence, and tbe answer was not disturbed.
So tbe case really comes down to whether tbe court was clearly wrong in bolding that there was no evidence tending to prove that Marker directed Ileidermann to run tbe drag-line elevator. In our judgment that must be answered in favor of appellant. As we have said, Marker testified that it was respondent’s business to place tbe button in proper position on tbe track cable. Ileidermann testified that Marker [524]*524instructed him to do it and see that everything was ready for a final test. That was corroborated by Bettzig and was not really denied by Marker. The evidence, as a whole, convinces us that there was ample tending to show that, after Marker set Rewald and his employees to work to change the hopper, he left the plant in charge of Heidermann to look after it and do, or have done, whatever was necessary to get everything in shape for a final test and delivery of possession to the county, and, therefore, the finding of the jury on that subject should not have been changed.
It follows that appellant was entitled to recover on the verdict as rendered, but Ave are of the opinion that the damages assessed are far too large. That matter ivas not passed upon by the trial court. It was not necessary to do so; but, in sending the case back for further proceedings, it is considered that such matter should be déalt with.
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The following opinion was filed October 24, 1916:
Marshall, J.
Errors are assigned on behalf of appellant because the court decided that the rock-crushing plant was in possession of Rewald at the time Engel was furnished his working place and at the time of the accident, and because answers given the jury were changed from being in favor of appellant so as to favor respondent.
[521]*521Tbe first four findings as made by tbe jury entitled appellant to recover. In submitting tbe question as to wbetber respondent furnisbed Engel a place of employment as safe as tbe nature of tbe employment would reasonably permit, and instructing in respect thereto, as was done, that if tbe guy cable was negligently fastened to tbe mast, such question should be answered in tbe negative, and not submitting any question on tbe precise point of wbetber respondent was in possession of tbe plant when tbe working place was furnisbed, obviously, it was held that there was no question, on tbe evidence, but that such possession existed and respondent was responsible for tbe safety of such working place. It is significant that tbe answer to tbe first question was not changed. So tbe verdict as corrected to harmonize with tbe views of tbe court, on its face, is to the effect that respondent did not perform its duty of furnishing Engel a suitable working-place. So tbe court must have held, in tbe end, that tbe question was immaterial because tbe plant was not in possession of respondent when tbe working place was furnisbed or when tbe accident occurred. If it were in such possession, and furnisbed such place, and tbe place was not safe, within tbe rule of tbe statute, at tbe start, or was rendered so by its operations, while tbe work was in progress, it cannot escape liability upon tbe ground that tbe immediate employer of Engel was an independent contractor. Jacobs v. Hershey L. Co. 124 Wis. 54, 102 N. W. 319, and similar cases relied upon by counsel for respondent, do not apply to such a situation, as they clearly show.
Wbetber an immediate employer is a mere agent or an independent contractor, under tbe rule in question, is not always free from difficulty. Tbe question is one of law where tbe facts are clear. It is unnecessary to point out here, 'if that copld safely be done, tbe precise scope of the rule. It is sufficient to say that it does not include a situation such as [522]*522existed in tbis case, if respondent was in possession of tbe working place when it was furnished, and it was then unsafe, or was subsequently rendered so by respondent’s operations.
Tbe final decision, as to possession of tbe plant, as counsel for respondent- contends, must, under tbe statute, bave all tbe force of a jury finding, since it is a matter wbicb was not submitted to tbe jury, and there was no request in that regard. However, its dignity is somewhat lessened from that wbicb it would otherwise possess because of tbe fact that, when the case was submitted, tbe evidence was fresh in mind, and tbe court’s attention was specially directed to tbe matter by an objection on behalf of respondent to submission of tbe first question, tbe conclusion was reached that tbe evidence so clearly showed possession of tbe plant in respondent as not to leave any issue in respect thereto for tbe jury.
In our judgment, from tbe record, tbe trial court was clearly right at first and clearly wrong in tbe end. It seems that tbe judge must bave overlooked tbe fact that Marker, who represented respondent, at no time testified that tbe latter did not take possession of tbe plant on tbe day be visited it and discovered that a change in tbe hopper was necessary; and confused tbe matter of possession by respondent with that of possession by Racine county. Marker testified, positively, that tbe plant bad not been turned over to tbe county at tbe time of tbe accident but not that it bad not been turned over to respondent.
Much is made on behalf of respondent of tbe fact that there were some trifling details of Rewald’s contract wbicb were not completed at tbe time in question, and that tbe trip button was not in place until that was done by Heidermann, on tbe day of tbe accident. Who was to locate tbe trip button was dealt with on tbe argument as if that was a vital matter, but it seems otherwise. It was tbe merest kind of a detail which any one could attend to in a few moments, and Marker testified that “To place tbis button in position would be our [523]*523duty, of course, to get tbe plant in complete operation, and not tbe duty of Eewald.” Tbe evidence is very definite to tbe effect that there was nothing of consequence for Eewald to do when Marker, with a .committee of tbe county board, and tbe employees of the county, visited tbe plant two days before tbe accident. Marker testified that everything but changing tbe hopper bad been done. That is, that tbe contract made with Eewald to construct tbe plant was substantially completed when be was engaged to do tbe extra work of changing tbe hopper.
We will not spend time to discuss tbe evidence at length. It satisfies us that respondent, by its agent, Marker, took possession of tbe plant on tbe day tbe arrangement was made for tbe extra work and would then have turned tbe property over to tbe county bad it not developed that tbe plan for tbe hopper was defective. Therefore, in employing Eewald to change tbe hopper, and while that was being done, operating tbe drag-line excavator, respondent was responsible for safety of tbe working place in question. That it was not as safe as tbe nature of tbe employment would reasonably permit, there was ample evidence. That being tbe case, tbe court clearly erred in changing tbe answer to tbe question as to whether tbe failure to furnish a suitable working place was a proximate cause of the deceased’s injury and death, unless Heider-mann was a mere interloper, instead of an agent of respondent by authority of Marker, in operating tbe drag-line excavator. That such authority existed was found by tbe jury, upon ample evidence, and tbe answer was not disturbed.
So tbe case really comes down to whether tbe court was clearly wrong in bolding that there was no evidence tending to prove that Marker directed Ileidermann to run tbe drag-line elevator. In our judgment that must be answered in favor of appellant. As we have said, Marker testified that it was respondent’s business to place tbe button in proper position on tbe track cable. Ileidermann testified that Marker [524]*524instructed him to do it and see that everything was ready for a final test. That was corroborated by Bettzig and was not really denied by Marker. The evidence, as a whole, convinces us that there was ample tending to show that, after Marker set Rewald and his employees to work to change the hopper, he left the plant in charge of Heidermann to look after it and do, or have done, whatever was necessary to get everything in shape for a final test and delivery of possession to the county, and, therefore, the finding of the jury on that subject should not have been changed.
It follows that appellant was entitled to recover on the verdict as rendered, but Ave are of the opinion that the damages assessed are far too large. That matter ivas not passed upon by the trial court. It was not necessary to do so; but, in sending the case back for further proceedings, it is considered that such matter should be déalt with.
The damages in such a case as this should be limited to the measure of pecuniary benefits which the surviving relative could reasonably have expected to realize from a continuation of the life of the deceased. That rule is too well understood to require citation of authority in respect to it, though it is not always kept in mind and the jury carefully instructed in regard thereto. The jury were quite fully instructed in this case, but do not seem to have comprehended that plaintiff’s recovery should be limited as indicated, and the finding be based on evidence sustaining it to a reasonable certainty.
The deceased was thirty years old when killed. Plaintiff’s husband survived him one year. Deceased was unmarried. Plaintiff was about fifty-three at the time of the accident. She is in good health and capable of, and does, earn money to, in part, support herself and family. She has four children, all sons, ranging from five to eighteen years of age. So far as their ages will permit, they show good disposition and capacity to aid her. The deceased earned $1.50 per day and all,-except sufficient to cover his reasonable necessities, cus[525]*525tomarily went for support of the family. The amount found by the jury would be equivalent to an annuity of about $225 per year during appellant’s expectancy of life. That she could not reasonably have expected that measure of support from her son, seems very clear.
In the judgment of the court, the recovery should be reduced to $3,500 and that such sum will satisfy the rule that, in disturbing a verdict upon the ground of its being excessive, by requiring the plaintiff to tahe a less sum, or submit to a new trial, the amount named should be as small as an unprejudiced jury on the evidence, when properly instructed, would probably find. For myself, I am permitted to say, in this opinion, that such rule, in my judgment, requires the sum named here to be considerably lower than $3,500, hut it is a matter in respect to which there may, easily, be differences of opinion.
By the Gourt. — The judgment is reversed, and the cause remanded with instructions to restore the answers made by the jury to the second, and third, questions, and to render judgment in favor of plaintiff for $3,500, and costs, if she elects to accept such recovery within thirty days after a return of the record to the court below, otherwise that there be a new trial.
A motion for a rehearing was denied, with $25 costs, on January 16, 1917.