Maitland v. Gilbert Paper Co.

72 N.W. 1124, 97 Wis. 476, 1897 Wisc. LEXIS 66

• Court: Wisconsin Supreme Court
• Decided: November 16, 1897
• Status: Published

Opinion

IVIaeshall, J.

Evidence was allowed, under objection from defendant’s counsel, respecting the effect on plaintiff’s right eye of the injury to the left ejm. t The complaint charged that the direct injury from the breaking of the glass was to the left eye. We see no reason why evidence as to all the injuries to plaintiff, which flowed naturally from the destruction of the left eye, was not competent. The objection to the evidence was properly overruled.

Plaintiff was allowed, under objection, to answer the question : “What, in your opinion, was the cause of the explosion of the glass ? ” That was one of the most essential questions the jury were to determine. True, whether the sudden opening of the surface blow-off valve, under the circumstances, would naturally tend to produce what occurred, was a question upon which expert evidence was proper. But the fact of whether the valve was opened, and, if opened, was opened suddenly, was in dispute on the evidence. Therefore, expert evidence should have been limited to opinions as to the effect of a sudden opening of the valve. When it went to the extent of passing on the whole case in respect to the fact in issue, as did the question objected to, it went too far, and the allowance of it was error. Where evidentiary facts, upon which the fact in issue depends, are in dispute, opinion evidence as to the ultimate fact must be given upon a hypothetical case. Luning v. State, 2 Pin. 215; Wright v. Hardy, 22 Wis. 348; Kreuziger v. C. & N. W. R. Co. 73 Wis. 158. The rule is that experts are not to decide issues of fact, hence all questions calling for opinion evidence must be so framed as not to pass upon the credibility of any other evidence in the case, else it will usurp the province of the jury or the court. Jones, Ev. § 374, and cases cited.

It was further assigned as error that the court denied defendant’s motion to direct a verdict. The motion was based on the theory that plaintiff and Welk were fellow-servants and that the circumstances were such, if plaintiff is to be believed, that he assumed the risk of Welk’s incompetency by remaining in the defendant’s employ with knowledge thereof. The rule in Erdman v. Illinois Steel Co. 95 Wis. 6, is invoked to sustain the claim that plaintiff was guilty of contributory fault under the circumstances, notwithstanding he remained at his post, if such be the fact, on the faith of defendant’s promise to remove the incompetent co-employee. There is no controversy but that, generally speaking, if an employee notifies the master of a special risk, as for instance that of the incompetency of a fellow employee, and objects to continuing in the master’s employ on that account, but never-tbeless remains upon the faith of the master’s promise to remove the special danger, for a reasonable length of time requisite to the performance of such promise by the exercise of reasonable diligence, the protesting employee cannot be successfully charged with contributory negligence on that ground. That is. an exception, well established in the law of negligence, to the general doctrine that if an employee continues in the employ of the master with knowledge or reasonable means of knowledge of a special risk of so doing, he cannot recover from the master for an injury received by being exposed to such risk, on account of his contributory negligence. In Erdman v. Illinois Steel Co., supra, a limitation of the foregoing exception to the general rule was recognized, which governed that case. Such limitation is just as well established in the law of negligence as the general rule itself or the exception thereto, as was there1 sufficiently demonstrated by reference to a multitude of authorities. Such limitation is to the effect that, notwithstanding the master’s promise to remove the danger complained of, if the circumstances are so extraordinarily dangerous, so immediate and obvious, that a person of ordinary care would not ordinarily incur it, then the exception to the general rule does not apply. It'only applies where the danger is not so great, constant, and immediate but that a person of ordinary prudence would ordinarily subject himself to it for the limited time necessary for the master,.with reasonable diligence, to remove it. Here "Welk was working under the immediate supervision of plaintiff. It is by no means conclusive that the circumstances were such that plaintiff may not reasonably have supposed that he could so supervise "Welk’s conduct as to temporarily avoid any serious danger of his presence as a co-employee. The facts of the case come far short of the rule in Erdman v. Illinois Steel Co. There the employee, because of his own interest, deliberately went to work with a broken saw, revolving at great speed, to cut bars of iron, under suob circumstances that it was apparent that the saw was liable to fly in pieces at any moment and seriously imperil the personal safety of every person in the vicinity. The motion to direct a verdict was properly refused.

A large number of questions were submitted by defendant, relating to the subject of negligence in respect to the water-glass.. The trial court withdrew that subject from the jury, leaving the charge of negligence resting wholly on the claim that defendant negligently retained in its employ an incompetent employee, after notice of his incompetence. ■ So, the refusal to submit questions covering any other subject of alleged negligence did not prejudice the defendant, hence does not constitute error.

This question was submitted by defendant’s counsel and refused: “ Was the opening of the surface blow-off valve the proximate cause of plaintiff’s injury?” It was not claimed that the mere opening of the valve was the proximate cause of plaintiff’s injury, but that the negligent retention of the incompetent servant was such cause. If the circumstances of the case were such that the only inference that could be reasonably drawn therefrom was that, if Welk remained in defendant’s employ, he was liable to do some act, or fail in some duty, that might probably imperil the personal safety of his fellow-servants, defendant, in the light of attending circumstances, ought reasonably to have foreseen that such might probably be the result of his retention, and that what followed was a natural and probable result thereof, then the fact found in favor of the plaintiff, in answer to the question proposed, would relate back to the negligent retention of the incompetent servant as the real producing cause of the accident, and make plaintiff’s case perfect on the subject of proximate cause. The request for the question in the form- proposed must be taken as an admission by defendant that the inferences referred to would follow a finding on such question in plaintiff’s.favor. Asbas often been held by this court, in some proper way, a finding as to the proximate cause was essential to plaintiff’s recovery, unless the fact appeared by necessary inference from facts found •or from the undisputed evidence.

Turning to the verdict, the answer to the first question merely found that the defendant was guilty of negligence which caused the injury. This court has repeatedly held that such a finding comes far short of determining'the proximate cause. The question has been so many times discussed that we will not go over it again at this time. In Deisenrieter v. Kraus-Merkel Malting Co., ante, p. 279, all the important cases on the subject in this court will be found cited. The precise form of the finding under discussion was condemned as insufficient in Andrews v. C., M. & St. P. R. Co. 96 Wis. 348. True, the trial court might have so. in•structed the jury as to mate such question call for a finding •of the proximate cause, but. there was a failure so to do. On the contrary, an examination of the. charge leads to the con•clusion that the trial court submitted the'case on the theory that if the jury found that the defendant was negligent and that such negligence caused the injury to the plaintiff, and plaintiff was free from contributory negligence, he was entitled to recover. The learned circuit judge said in regard to the question: “It goes to the gist of the action, and all the other questions are embraced within it.” The meaning ■of such instruction cannot be misunderstood. If it means anything, it means that all the other questions go no further than the first in determining the facts essential to plaintiff’s recovery, so far, at least, as relates to the defendant’s fault. That overlooked entirely some of the essential elements of actionable negligence. It only exists where the party whose fault causes the injury was not only negligent, but the injury was the natural and probable result of it, and the attending circumstances were such that a person of ordinary care ought reasonably to have apprehended that a personal injury to another might probably result from such negligence.

The other findings on the subject of negligence are that Welk was incompetent, that he was retained by defendant after notice of such incompetency an unreasonable length of time, and that the accident was caused by his suddenly opening the surface blow-off valve. That may be all true, and yet the bursting of the glass from such cause be such an extraordinary occurrence that it would not follow that a person of ordinary care, in the light of attending circumstances, ought reasonably to have apprehended it. Neither does it follow, under the circumstances, conclusively, that defendant ought reasonably to have apprehended that the retention of Welk would or might probably imperil the personal safety of his co-employees. Therefore, the fact of proximate cause was not fou'nd by the jury, and does not follow as a conclusion of law from the facts found, and does not appear by the undisputed evidence. Hence, the court erred in not submitting the question suggested by the defendant, or some other question, calling for a finding of this essential fact, or in not so instructing the jury in respect to the first question as to make that cover the subject. On the case as it stands, the verdict is not sufficient to sustain a judgment, accoi’ding to repeated decisions of this court.

The trial court refused to give the following instruction: “The mere fact that Welk generally was incompetent as a fireman will not authorize you to answer the first question, that the defendant was guilty of negligence; you must further find that the fireman Welk did some act which as a fireman it was improper for him to do, and which act directly and naturally caused the explosion of the glass. Unless these facts are established by a preponderance of the testimony you must answer the first question ‘ No.’ ” Also refused to instruct the jury, in substance, that, ‘unless they found that Welk opened the valve in a negligent manner, that it was within the scope of his employment, and that it was the proximate cause of the plaintiff’s injury, they must answer the first question “No.”’ And further, that ‘the undisputed facts show that if the fireman opened the valve it was not within the scope of his employment.’ If the purpose of such instructions was to inform the jury that the defendant was not chargeable with the negligence of Welk, unless it was in doing some act that he was required to do as fireman, they were properly refused. Incompetence is by no means confined to mere inability to do properly the particular work required. It goes to reliability in all that is essential to make up a reasonably safe person, considering the nature of the work and the general safety of those who are required to associate with such person in the general employment. A person may be competent to do the particular acts required of a fireman, yet be so careless in respect to obeying the rules that prohibit him from interfering with appliances not connected with his work, as to render him an exceedingly dangerous and incompetent person to be associated with. The rule is tersely stated in the opinion of Mr. Justice Brown in Coppins v. N. Y. C. & H. R. R. Co. 122 N. Y. 557, substantially thus: ‘ A competent man is a reliable man. Incompetency exists not alone in physical or mental attributes, but in the disposition with which a person performs his duties, and though he may be physically and mentally able to do all that is required of him, his disposition toward his work, and toward his employer, and toward his fellow-servants, may make him an incompetent man.’ So here, though it may be true that Welk had sufficient capacity to do the acts required of him as a fireman, yet if he had not sufficient capacity to understand and obey rules which required him not to disturb parts of the machinery with which he had nothing to do, and which he was prohibited from touching, a violation of ivhich rules was liable to imperil the personal safety of his fellow-servants, he was incompetent. And if the master was negligent in employing or retaining him, a resulting injury to a co-employee, by such incompetent servant disobeying sucb rules, or neglecting to do properly some act required of bim as fireman, would equally relate to the master’s negligence as the proximate cause. So the instructions referred to were properly refused.

It is assigned as error that the court instructed the jury regarding the first question, as follows: “An employer is bound to furnish competent employees; if he fails to do so he is liable for injuries caused'by their incompetency, unless the co-employee assumes the risk.” That, in effect, told the jury that a failure to furnish competent employees renders the employer liable, without regard to whether such failure is the result of a want of ordinary care or not. Such is not the law, and we apprehend the learned circuit judge did not intend to be so understood, but it is hard to perceive how the jury could have otherwise understood the language used. The rule is that the master must úse ordinary care and diligence in respect to employing competent servants, having regard always to the character of the particular service and the consequences that may probably result from incompetency in such service. When such care and diligence shall have been exercised and a servant is nevertheless employed who is incompetent, a resulting injury to a fellow-servant cannot legally be chargeable to the master upon the ground of neglect of duty to such injured servant. 7 Am. & Eng. Ency. of Law, 844, and cases cited.

It is further assigned as error that the court refused to set aside the verdict as against the weight of evidence. This court cannot decide whether the trial court held right or wrong on that, as an original proposition. For sufficient reasons the duty of preventing injustice through a wrong verdict is vested primarily in the trial court. From its decision, right or wrong, there is no relief under our system of jurisprudence, unless such decision be made to appear by the record so manifestly wrong as to amount to a clear abuse of judicial discretion, and that occurs ordinarily only where there is practically no proper - evidence which, if believed; will support the verdict. From the fact that -where there is a wrong verdict on the evidence, and yet there is evidence which, standing alone, may reasonably be believed, to sup port it, there is no relief on appeal, trial courts should, with deliberation and care, exercise the broad legal discretion with which they are clothed, so as to promote, so far as practicable, the due administration of justice. Here, as appears by the record, several important allegations with little or no -evidence to support- them except that of the plaintiff himself were found in his favor by the jury, notwithstanding the evidence of several witnesses, some of whom at least were disinterested so far as the record shows, and very strong probabilities growing out of the situation, to the contrary. Tet the decision of the court on the motion to set aside the verdict is to the effect that it is not against the clear preponderance of the evidence, and inasmuch as we cannot say that the plaintiff’s evidence is impeached by all the other ■evidence, and all the reasonable probabilities, so as to bring the case within Badger v. Janesville Cotton Mills, 95 Wis. 599, and Vorbrich v. Geuder & P. Mfg. Co. 96 Wis. 277, the decision must be sustained on this appeal. The case is within O'Brien v. C. & N. W. R. Co. 92 Wis. 340, and within the general principle that the action of the trial court, in refusing to set aside a verdict as against the evidence, will not be -disturbed if there is any evidence to support it. Weatherly v. Meiklejohn, 61 Wis. 67; Van Doran v. Armstrong, 28 Wis. 236; Hutchinson v. C. & N. W. R. Co. 41 Wis. 541; Seymour v. Seymour, 64 Wis. 16; Hichey v. C., M. & St. P. R. Co. 64 Wis. 649; Austin v. C., M. & St. P. R. Co. 93 Wis. 496.

By the Court.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.