Koepp v. National Enameling & Stamping Co.

139 N.W. 179, 151 Wis. 302, 1912 Wisc. LEXIS 295

• Court: Wisconsin Supreme Court
• Decided: December 10, 1912
• Status: Published

Opinions

Maeshall, J.

All of the many questions presented for consideration, except a few, may well be passed as involving errors, if errors at all, which were not fatally prejudicial,, since it does not satisfactorily appear that, had they not occurred, the result might, probably, have been more favorable to the party complaining. That is the rule of the written law. Very likely such was the purpose of sec. 2829 of the Statutes though, it must be admitted, that until the legislative will was again unmistakably expressed by ch. 192, Laws of 1909 (sec. 3072m, Stats.), some fifty years after its being first proclaimed, it was. not, with perfect consistency, recognized here as going to the extent which now seems plain. As said in Oborn v. State, 143 Wis. 249, 126 N. W. 737, whether the later statute adds to the earlier one, it is welcomed here as a help in shaping our jurisprudence on lines, which our judgment approves, — lines in respect to which,, though there was, formerly, some differences as to their having been laid in the written law, such differences did not spring from any hostility to what is now regarded as beneficial.

There may be want of harmony as to what is the legislative will incorporated in a statute, yet none as to whether that will should be given its intended vitality. The former may proceed from variant angles of judicial vision or any one of several other legitimate circumstances. It is now, by the late most emphatic expression giving direction to judicial thought, made plain that the final termination of litigation must not be delayed by errors of trial courts, however numerous and inexcusable, unless it shall appear with reasonable certainty, that, had they not occurred, the result might, probably, have been more favorable to the ohe complaining of them.

In no other way than the one suggested can sec. 2829, Stats. (1898), supplemented by ch. 192, Laws of 1909, in letter and spirit, be given proper place in our.judicial system. There is a presumption in every case, till evideneiarily overcome from an examination of the whole proceedings, not only against error, but, in case of error, against its being prejudicial, — that is, its affecting any substantial right of the party complaining. To overcome such presumption there must be affirmatively, — -that is evideneiarily, — a reasonably clear appearance from the record that the error, not only harmed such party, in that it might have probably changed the result; but, harmed him in a material degree.

A full appreciation of the obstacle to error being a ground for relief here will prevent many appeals which can only work harm to the one seeking relief as well as his adversary by delay and wasteful expenditure: and, also, work harm to the public at large, which at great expense maintains the in-strumentalities for settling controversies of sufficient moment to be worthy of judicial cognizance. Such appreciation will likewise cause counsel in presenting appeals to concentrate their energies on such points as are really worthy of -attention,, omitting the multitude of matters commonly presented for consideration.

The foregoing will explain why several questions in this case aré not treated at all, and others only briefly, leaving, really, but three requiring more than mere mention, if even that.

Should the judgment have been for appellant because of evidence conclusively establishing contributory negligence and assumption of the risk? That, first challenges attention in the order of the three major contentions made by appellant’s counsel.

It is conceded that the contrivance in question was not reasonably safe. If the statute, hereafter referred to, applies, appellant must be held chargeable with having erected it. The mere manner of the use cannot be separated from that of the construction. The former was in contemplation of the latter. The platform was placed about twenty feet above the floor. A ladder, standing thereon and leaning, at or near the top, against some support, was a necessary part, since without it the workman could not efficiently reach the ceiling. So the character of construction must, necessarily, be considered with reference to that of use which was contemplated. The particular manner was found against defendant, in practical effect, in the finding as to proximate cause, if it does not appear conclusively from the evidence. So, in determining whether respondent assumed the risk or was guilty of contributory negligence, we must view the structure, — scaffold so called, — and ladder in combination, as used.

It being conceded, as indicated, and, as the fact is, that the platform was not properly constructed, was the imperfection so obvious that respondent, as an ordinary intelligent man, must be held to have known of it ? ■ He put it up; but, in doing so, acted for a superior; so the erection, to all intents and purposes, was by appellant. The whole contrivance'was, in legal effect, supplied, the same as if the work were that of some person other than respondent. That is upon the theory, which the jury had a right to adopt, that respondent told the truth as to the platform having been put up and used as directed and observed by the chief engineer prior to the accident. In view of these facts, whether the imperfection in the contrivance should not have been known to respondent, is by no means entirely clear. Solved from an original standpoint, tbe inclination might he in favor of appellant. Tbe trial judge wbo was in closer toneb with tbe matter than we are here, held that there was room in tbe evidence for reasonably conflicting inferences. If so, there was a jury question and tbe result cannot be disturbed whatever might be our decision, independently of the verdict. If there be error, tbe mischief is in tbe submission to tbe jury. They could not be expected to overrule tbe opinion of tbe trial judge by finding for appellant upon tbe ground that, as matter of law, there was contributory fault or assumption of risk as claimed. Jurors weigh probabilities against probabilities. Where tbe reasonable inferences are all one way tbe trial court must decide. If not before tbe case crosses tbe jury threshold, then after they have spoken. To wait for such speaking and then change tbe result, is to ask tbe jury to agree with tbe court and then disagree with their compliance therewith.

So tbe verdict, really, adds little, if anything, to tbe weight of tbe decision submitting tbe question under discussion as involving a conflict of reasonable probabilities. Such a decision must prevail here unless manifestly wrong. Seasonable doubts in respect thereto must be resolved in favor of tbe trial jurisdiction. Only in that way can tbe dignity be given thereto required by tbe written law, and which best promotes, in general, tbe speedy, economical vindication of right over wrong.

Tbe proper construction of a scaffold or platform, in such a situation as that in question, may, reasonably, be said to involve more than ordinary experience. That respondent possessed such does not conclusively appear. Since expert knowledge, in some degree, may, reasonably, be said to have been required, appellant, regardless of the statute, -was bound to supply it. That is, in any event, a master wbo is bound to supply a reasonably safe appliance for use of bis servants — in case of tbe instrumentality involving tbe exercise of expert knowledge — and constructs it himself, be should do it with -such care and skill as is, in general, devoted to such matters •by an ordinarily good expert.

Now assuming, as we must, that there was room in the •evidence to hold, as matter of fact, ‘that respondent did not possess the special knowledge requisite to charge him with information of the defects in the structure, and that it was as contemplated by appellant, — then there was a jury question in respect thereto as the trial court held. The element is quite significant, as the trial court doubtless thought, that the chief engineer had superior knowledge, as respondent had a right to believe, and he not only directed the manner of creating the contrivance, but saw the manner of its use, with approval by silence, and gave respondent assurance that it was perfectly safe.

So, though we confess again, the question of whether respondent was guilty of fatal fault in respect to the matter, is not free from difficulty, — that counsel had good warrant for raising and pressing that point with confidence upon our attention and for giving it significance on the appeal second •only to the next question to be considered, — it does not seem sufficiently clear that the trial court was wrong to warrant •overruling its decision.

Whether appellant, under common-law rules, was, clearly, actionably negligent, admits of some question. The trial ■court submitted the case solely upon the ground of breach of •sec. 1636- — 81, Stats, (sec. 1, ch. 257, Laws of 1901). So, independently thereof, the verdict does not support the judgment. No presumption favorable to respondent can be indulged in as to findings having been made, on matters omitted which were essential, from a common-law standpoint, since liability was grounded on the statute and the court expressly refused to submit such omitted matters. Therefore, if the statute does not rule, the judgment, must be reversed.

The statute is as follows:

“A person employing or directing another to perform labor of any kind in the erection, repairing, altering or painting of a bouse, building or structure shall not furnish or erect or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders or other mechanical contrivances which are unsafe, unsuitable or improper, and which are not so constructed, placed and operated as to give proper protection to the life and limb of the person so employed or engaged. . . .”

Note that the duty of the employer is made positive and emphatic. The language is somewhat unlike that treated in West v. Bayfield M. Co. 144 Wis. 106, 128 N. W. 992; Willette v. Rhinelander P. Co. 145 Wis. 537, 130 N. W. 853; McGinnis v. Northern P. Mills, 147 Wis. 185, 132 N. W. 897, 133 N. W. 22, followed by ch. 396, Laws of 1911, changing the statute. Moreover, such statute as was thought, had theretofore received construction in a long line of cases. So it was viewed from a different angle than perhaps it would be now. It seemed best to adhere to the view supposed to have been previously taken as to the legislative purpose, especially, since there had been many unimproved opportunities for the lawmakers to again speak on the subject, — strongly suggesting that their will had been correctly understood by the court. It is probable that the trae intent of sec. 1636j, Stats. (1898), was declared here, and, in the progress of events, that the more advanced thought was adopted which is now incorporated into sec. 1636jj, Stats. (Laws of 1911, ch. 396).

We must often read statutes, which are susceptible of a •double meaning, in the light of the environment characterizing their enactment, in order to determine the precise legislative intent; the judicial duty and purpose being always to give effect thereto within constitutional limitations. So in a •doubtful law, enacted, at one time, the court may discover a particular purpose as the one intended, and in such an enactment at a much later day to meet an entirely different condition and respond to a different public sentiment, a different purpose may seem to have been intended.

So, if for no other reasons than those given, the restrictive meaning given in the eases cited to sec. 1636/ of the Statutes and similar laws does not have any great weight as to that of the one in question. It was adopted from the state of New York. It originated there by ch. 415, Laws of 1891 of that state. It was construed there in 1900, Stewart v. Ferguson, 164 N. Y. 553, 58 N. E. 662. The peculiar language thereof differing, somewhat, from anything in our sec. 1636j or sec. 1636jj, prior to 1911, was taken as placing upon the master a positive prohibition “without exception on account of his ignorance or the carelessness of his servants.” After such construction the law was adopted here and, by a well known rule, it must be presumed that the legislature intended to adopt the construction also. So far, perhaps, as was necessary, this court followed it in Fonder v. Generad C. Co. 146 Wis. 1, 130 N. W. 884, but, without referring thereto or that the statute was of foreign origin. The first New York holding has rather been emphasized and broadened in favor of employees than otherwise, Schapp v. Bloomer, 181 N. Y. 125, 73 N. E. 563; Smith v. Variety I. & S. W. Co. 147 App. Div. 242, 131 N. Y. Supp. 1033; Gombert v. McKay, 201 N. Y. 27, 94 N. E. 186; Caddy v. Interborough R. T. Co. 195 N. Y. 415, 88 N. E. 747; Rotondo v. Smyth, 92 App. Div. 153, 86 N. Y. Supp. 1103, followed as binding on the federal supreme court as to a cause of action arising in New York. Hutton v. Holdrook, C. & D. C. Co. 139 Fed. 734. The language of the late New York cases seems to have been used with a much clearer appreciation than formerly of the broad liberal purpose toward employees which the legislature had in mind, as witness the following from Gombert v. McKay, supra, decided in 1911:

“It, in terms, absolutely forbids those employers to furnish or operate, or cause to be furnished or operated, any apparatus therein mentioned of the character and quality described by it. It, in its effect, provides that any employer who either personally, or by another, furnishes for the performance of any named labor a forbidden article shall he responsible therefor. The duty of the employer created by it is personal, incapable of delegation, and unaffected by caution and discrimination in selecting employees for tbeir prudence and competency.”

Also the following from Smith v. Variety J. & S. W. Co., supra, decided in 1911:

“Tbe defendant is not beld liable for injuries to its workmen occasioned without any fault upon its part. It was at fault in furnishing a scaffold which was not safe, as the statute required it to do. While the scaffold appeared to be safe it was, in fact, insecure. Under the law the employer became responsible for the safety of the scaffold when he directed the workmen to use the scaffold.”

So it must be held that the legislature intended to make employers, in the situations dealt with by the statute, absolute insurers of the safety of their employees, save in cases of efficient assumption of the risk or contributory negligence. The legislature is presumed, as was held in New York, not to have intended to abolish those defenses though it had power to do so. Borgnis v. Falk Co. 147 Wis. 327, 133 N. W. 209; Ives v. South Buffalo R. Co. 201 N. Y. 271, 94 N. E. 431. That result was reached by construction under the old rule that the legislature will not be held to have intended to abrogate the common law where the contrary does not appear, expressly, or by very clear inference. It has, commonly, been said, an act in derogation of the common law is to be read most strictly in favor of the latter. That is not without its exceptions, as we shall see later. In general, like most other judicial rules, where the reason for it manifestly does not exist the rule does not apply.

Thus, it seems plain, the case made by the evidence is within the statute as to fault of respondent, if the structure and the work to which it was devoted were within it.

The statute, in the respects suggested, is open to construction. The field had not been covered prior to its adoption here, nor has it been since in any very satisfactory way. As regards a rule, evolved from a general exposition of the statute, defining its limitations as definitely as practicable so as to minimize difficulty of determining whether any given case falls within it, the subject is quite open to original treatment.

It must b,e conceded that the full reasonable scope of the words of the law, on the side most favorable to employees, includes the general restoration of a structure, or any substantial part of it, to a proper condition, in any material particular, as for painting, and on the side most favorable to employers it stops quite short of that. In the broad liberal view, any act of restoration to a former, more perfect condition, is -repairing. The only restriction heretofore made here is that it does not apply to rebuilding an entire structure. Blount v. Janesville, 31 Wis. 648. The New York court, Appellate Division, Stokes v. New York L. Ins. Co. 112 App. Div. 17, 98 N. Y. Supp. 135, inferentially, at least, held that common ordinary washing is not within “repairing,” which might well be, and, cleaning, out of the ordinary, requiring the use of staging or scaffolds and ladders, especially preparatory to more important work, such as painting, with or without other design than to restore to a good or suitable condition, might be. The latter seems to be within the reasonable scope of the statute, and, perhaps, it might be given a narrower meaning in favor of employers. , A reference to authorities would do little good. They would only show how the word has been construed under particular situations, none being sufficiently analogous to that in hand to be helpful. In general, they refer to the meaning commonly found in standard dictionaries, — “to restore to a good state after decay, injury, dilapidation, or destruction,” — that is to make good again an existing thing which for some reason has fallen from a former condition of suitableness, — and then determine between those broad comprehensive lines the intent of the legislature in the particular instance.

Much that has been said respecting “repairing” applies to “scaffolding” and “mechanical contrivance.” The scope thereof would reasonably include any temporary structure made'up of parts, viewing the term in its broadest scope, used for support while doing any kind of work mentioned in the law, — any kind of an elevated platform for workmen to use in the performance of their duties. Any combination for use in doing any kind of work mentioned in the statute where the servant is dependable thereon for support, in place of an ordinary surface, such as the ground or floor, is a mechanical contrivance. The legislature, in the combination of words, “scaffolding, hoists, stays, ladders or other mechanical contrivance,” viewed in a broad remedial sense in favor of employees, left little, if anything, uncovered which may be used in the work mentioned, where required to be done beyond the reach of one standing on an ordinary surface.

So we face three questions, viz.:

1st. Shall we merely determine whether the particular facts here made a case within the statute, without reaching the result by a logical process of reasoning which will so clear up obscurities as to minimize, so far as practicable, uncertainties, as to what situations, in general, the statute applies to and what it does not, — just taking a step which may, in the course of time, by exclusion and inclusion, render the law reasonably easy of application, or make, now, a decision as narrow as the case ?

2d. Should the statute be strictly construed, minimizing, so far as the language used will permit, its departure from the comm on law, as has been generally done in treating such changes of that which was adopted for this state by vote of the people in adopting the constitution ?

3d. Should the law have a broad liberal construction, giving effect thereto within the boundaries of reason and the scope of the words used, — a construction giving it the amplest vitality, as a piece of remedial legislation to deal with personal injuries in the field mentioned in the act, so as to narrow, so far as can reasonably be done within such boundaries, the dangers of irremediable loss to employees without efficient fault on their part ?

It is considered that the first question should be answered in the negative. The industry of the legislature in trying to remedy the neglect of the past to furnish employees reasonable immunity from danger of irreparable loss in case of being corporeally injured in service, evidenced by the several important acts which have recently been passed, the crowning one being the Workmen’s Compensation Act, should not be so devitalized by the courts as by making for such acts 'as narrow a decision as practicable. True, that course, in general, is common and is the best; but, there are good exceptions and this seems to be one. The court should go, at least, far enough to make definite the viewpoint, in general, from which the scope of the law should be measured. That would be within the boundaries of the case. It would, doubtless, be in harmony with the wish of the legislature. It would be helpful to bench and bar in future cases. It would save much public and private waste. So we must decide between the rule of strict and of broad liberal construction, and let the choice determine the scope of the law.

The ordinary rule, in case of a radical departure from the common law, should not be displaced without some good reason for it. Is there such in this instance ?

The basic idea of the common rule is that the legislative will should govern; the presumption being against intent to change the system adopted by a referendum to the source of power. It is no part of judicial administration to either extend or minimize the meaning of written law according to what may appear, in that field, the better policy. The legislature, within constitutional limitations, in the realm of public policy, is the supreme judge. So the strict construction which sometimes confines written law closely within its letter, — even restricts that, — is applied as the way of most certainly bowing to the will of the lawmakers. That is often not fully appreciated. Such want' of 'appreciation sometimes causes unjust criticism. If when.the law in question originated there was clearly a purpose indicated by the general trend of legislation as to superseding the harsh common-law rules which afforded no remediable dignity, in many situations, to injuries received by employees in the course of their employment, then laws to that end should receive the broad liberal construction commonly applied to legislation designed to remedy a supposed mischief, — really that construction commonly applied to remedial legislation.

True, in a technical sense, such a law as the one here gives a new right instead of a new remedy, but. in the broader sense, — in the one which forms the basis of legislative activity in such matters, — it recognizes as a right that which was before, through a harshness of system now regarded, quite widely, as unsuitable to modern conditions, thought to be unworthy of such dignity, and affords a remedy. So in a just and proper sense, such a law is remedial in character.

One of the most persuasive reasons, formerly, given for restricting the effect of legislation such as that in question, is that, in effect, it would make employers insurers of the safety of their employees, and that it is not to be presumed the legislature would, under any circumstances, cast such a burden upon them, and that the court should not read any such purpose out of legislative action in the face of any fair way of escape from it. Erom the viewpoint of later times it has come to be appreciated that such legislation does not, in reality, — -in practical effect,- — transfer the losses inflicted upon employees from- them to their employers; but, merely, makes a more direct, humane, and economical transfer thereof to the products of labor as a natural inevitable part of the cost thereof; thus laying the burden on consumers of the same as insurers where, by natural and mural obligations, it belongs,— a crystallization of economic law and moral duty into legal obligation.

The changed public policy and sentiment from the time when it was common, by construction, to practically, if not actually, violate the letter of written law to preserve old limitations upon rights and remedies, is no more significantly illustrated than in our Workmen’s Compensation Act. Even the once thought magnitude of the burden of such legislation to employers has been greatly lessened by the modern facilities afforded them to insure against the risk. Such opportunities being open and readily enjoyable by employers, if they do not embrace them, the failure has a east of negligence on their part, or voluntary assumption of risk.

Thus the ground for former supposition, as to unreasonableness, hence reason for restricting the scope of the legislation by construction in order to shape it to the will of the people, has been substantially removed by modern development. That illustrates the danger of adhering, strictly, to the adjudicated meaning of a legislative collection of words in the field of police legislation, when it depends upon construction, and of adhering, strictly, regardless of lapse of time, to what is reasonable and what, destructive legislation in such field. The absurd, oppressive, and illegitimate, viewed in the environment of one age, may be reasonable and legitimate, — even demandable by the moral standards of another through a mere change of conditions. So, in this case, the reasons for the strict construction of the legislation in favor of subsistence of the common law have been eliminated to such extent, that what still remains may be of little weight as compared with the importance of fully remedying the mis-chiefs the lawmaking power legislated against, and so, form no appreciable obstacle to giving greater effect than formerly, as to such legislation, to the words of the law which, in their letter, make employers the primary stepping stone of personal injury losses by accidents to tbeir servants to tbe consumers in general, wliicb tbe legislature ba's by several recent expressions of its will shown a disposition to accomplisb as fully and as fast as practicable.

In addition to tbe Workmen’s Compensation Law there is cb. 254, Laws of 1907, and are several others of a significant character, showing decided change of public policy, — some following closely restrictive decisions of this court, required, as was thought, by a settled prior construction of legislation of a similar character, radically remedying such construction by new enactments, — notably ch. 396, Laws of 1911, wherein it is provided that the duty to guard against danger to employees created by sec. 1636; and sec. 1636;; “shall be absolute” and “the exercise of ordinary care on the part of the employer shall not be deemed a compliance with such duties,” supplementing the latter section, practically abolishing the defense of assumption of the risk.

The circumstances mentioned and others which might be referred to, — notably the general trend of legislation throughout the land and strong public sentiment evidenced in many ways for the creation of a system which will reasonably protect employees from the dangers incident to their service; abrogating as far as practicable the evidence of “man’s inhumanity to man,” evinced in the old system, which, though of judicial creation and development, originally, became the law of our state, as before indicated, by referendum to the people in the adoption of that part of the constitution- found in sec. 13, -art. XIV, in the words:

“Such parts of the common law as are now in force in the territory of Wisconsin, not inconsistent with this constitution, shall be and continue part of the law of this state until altered or suspended by the legislature,”—

unmistakably indicate, as it seems, that to apply the common rale of construction of legislative enactments in derogation of the common law to that in question, would go counter to the legislative will. We may properly emphasize, in passing, that responsibility for objectionable-features in the law of negligence does not, to any great extent, at least, lie at the door of the court. The remedy within the broad lines of constitutional limitations has been with the lawmaking power from the start. An awakening there was the thing required and, perhaps, it did not come too soon. Had it occurred, sooner, there would, probably, have been far less complaint of that which was powerless to furnish a remedy. It could only, with courage requisite to full performance of duty, deal with the law as given and wait for the needed changes indicated by advanced human sentiment of the day and required by modem industrial conditions, stepping, justifiably, it is thought by the writer, from time to time, aside to stimulate activity where only that could be efficient.

Applying to the statute the broad liberal rule suggested, and appreciating the mischiefs it was intended to remedy, both the kind of work and contrivance in question are fairly within it. The plain purpose is inconsistent with such fine distinctions as that between a structure in a room and one outside of a building, or that between a platform six feet above a floor and one at a greater height, suggested in Schapp v. Bloomer, 181 N. Y. 125, 73 N E. 563, and that between a place and an appliance, making a scaffold the latter and so not within the safe-place rule, as in Butler v. Townsend, 126 N. Y. 105, 26 N. E. 1017; Kimmer v. Webber, 151 N. Y. 417, 45 N. E. 860, the latter being said in Caddy v. Interborough R. T. Co. 195 N. Y. 415, 88 N. E. 747, to have been displaced by the law, which was adopted here, and the former practically rejected -as out of harmony with the legislative purpose; that the rule of ejusdem generis does not apply to restrict the meaning of any of the descriptive words in the law.

So the word “repairing” stands by itself, in practical effect. It is not to be restricted by anything wbicb precedes it or follows it. The same is true of the term “scaffolding” and the words “mechanical contrivance.” Each is to be given the broad comprehensive meaning necessary to accomplish the manifest purpose of the act. Both the work and the structure or contrivance may be as well inside a building as outside and the particular distance above the floor or ground is not material so long as the work and the contrivance answer fully to the calls of the law.

The result is that the trial court was right in holding that the case made by the evidence was clearly within the statute and submitting to the jury only the questions concerning the claimed fault of respondent and the damages.

Was there error in not requiring respondent to submit to a greater reduction of the jury award? That is the only remaining question, deemed of -sufficient importance to require special attention.

Personally, I think the reduction should have been greater, but I am content with merely stating my position and the effect of the recovery in justification thereof, which I may properly do here, while confessing the logic of the prevailing view and endeavoring to support it, impersonally, with as much fidelity as if it were my own.

The respondent was a young man, only thirty-six years of age, of good health, and above the average in earning capacity, which was about $864 per year. The jury had a right to believe, from the evidence, that his earning power was practically destroyed. The details need not be stated. His capacity to move about and enjoy life is permanently greatly impaired. . There was much pain and suffering, but that, as appears, will not continue to any great degree.. The injury was to the limbs. There has been a recovery so that he will probably be able to permanently move about by the aid of a cane or other usual support in case of such defects. He will probably be able to earn something, though not in his former vocation or in any manual labor requiring much exertion. He was paid, after the injury, as matter of favor, $567.56 as wages, and his expenses for hospital, ambulance, and doctor’s services were assumed by appellant. It is presumed, since the contrary, in the judgment of the court, does not clearly appear, that the jury award was reduced in observance of the legal standard under the circumstances, viz.: to the lowest •amount which in any'reasonable probability, another jury of fair men, properly instructed, would find on the same evidence, — recognizing, efficiently, appellant’s right to a jury trial in respect to the matter. Baxter v. C. & N. W. R. Co. 104 Wis. 307, 80 N. W. 644; Secard v. Rhinelander L. Co. 147 Wis. 614, 133 N. W. 45. It affirmatively appears, also, that consideration was given to whether the verdict was too large, independently of any illegitimate influence, and that the jury were acquitted of having been actuated by passion or prejudice. The award was treated as their honest judgment, but unreasonably large, nevertheless. To cure that and at the same time, in practical effect, give appellant the benefit of a jury award, a reduction from $15,000 to $11,000 was thought necessary.

So, in the legal aspects, the course of the trial court to the result reached, is faultless. Manifestly, the judge had a far better opportunity of determining the matter than is possessed here; he not only having seen and heard the witnesses, but, particularly, had opportunity to observe respondent. In such circumstances it requires a very strong case of excessiveness to warrant disturbing the judgment. .While the recovery seems quite large, it is not thought to involve such clear mistake of judgment as to satisfy the rule suggested. It is probably equal to a life annuity for respondent of about $600 per year. Or, 'as it is thought, around three fourths of his former earning power. That is to balance capacity to engage in gainful occupations and other elements proper to be considered. It is in that view, that this court does not see its way clear to disturb the trial decision, though, as said before, the writer inclines to the opinion that the recovery should have been lessened considerably more.

By the Gourt. — The judgmént is affirmed.