Odegard v. North Wisconsin Lumber Co.

110 N.W. 809, 130 Wis. 659, 1907 Wisc. LEXIS 306

Opinion

Winslow, J.

A question of jurisdiction arises at the threshold of the case which must be first examined.

The action was commenced in Sawyer county. This county at that time had two terms a year, one commencing on the first Monday in June and the other on the second Monday in November. The summons was served June 11, 1904, and hence the action was not triable at the June term. The answer was served in August following. On the 6th day of October, 1904, an affidavit alleging prejudice of the presiding judge was filed by the defendant, and at the same time an order to show cause, returnable October 17th, was obtained and filed, requiring the plaintiff to show cause why all further proceedings in the action should not be stayed until the plaintiff should pay the taxed costs in two previous actions commenced by the plaintiff against the defendant on the same cause of action and which had been dismissed. This motion was based on an affidavit made by one of the defendant’s attorneys stating the facts. After the filing of these papers the presiding judge called upon the Honorable W. C. Silvee-thorN, the presiding judge of the Sixteenth circuit, to hear the motion, and Judge SilverthoeN attended and heard the motion at Hayward, Sawyer county, October 28th, and continued the same for further hearing, but in the meantime ordered that the plaintiff’s proceedings be stayed, so far as moving tbe case for trial at tbe next November term of court was concerned, until sueb costs were paid. Tbe costs were not paid and tbe case was not noticed for trial at tbe November term, and on May 25, 1905, Judge SilvebtiiobN made an order and sent it to tbe clerk of court of Sawyer county vacating tbe temporary stay and authorizing tbe plaintiff to notice tbe cause for trial at tbe June term. Thereupon tbe case was noticed for tbe June term by tbe plaintiff. On June 5th, being tbe last day of tbe November, 1904, term, tbe defendant appeared in court and moved that tbe case be sent to another county, but tbe motion was denied by tbe presiding judge. Tbe action was called for trial at tbe June term on tbe 26th day of that month, at which time Judge Silveb-thobN attended and presided, and tbe defendant renewed tbe motion to send tbe case to another county as well as tbe motion for a stay of proceedings until tbe costs of tbe previous actions were paid, but both motions were denied.

Tbe appellant’s contention is that, because no judge attended to try tbe cause during tbe November, 1904, term, it became tbe duty of tbe presiding judge to change tbe place of trial under tbe terms of sec. 2625, Stats. 1898, as amended by ch. 101, Laws of 1901, and ch. 282, Laws of 1905. That section provides that tbe court shall change tbe place of trial of any action or special proceeding on tbe application of a party thereto who shall file bis affidavit alleging prejudice of tbe presiding judge, but that, in lieu of granting such applica-. tion, tbe judge may in bis discretion retain tbe action or proceeding in the same court

'‘until tbe last day of tbe then current term if tbe application is made at a term at which tbe action is triable, or tbe next term if it is made in vacation, and in tbe meantime shall call upon some other judge or judges to attend and bold court during such current or next term for tbe purpose of exercising' jurisdiction in all actions and proceedings in which applications for change of the place of trial have been made for such, reason. And while so in attendance said judge may make all ■orders and bear all applications and motions tbat may be brought on fo-r bearing during tbe time be shall so attend. If such other judge or judges (as may be necessary or convenient) can so attend and hold court for such purpose at ■either such terms, the same shall be done with the same effect as if a change of venue to another circuit and a trial of such action or proceeding had been had therein; but if no such judge shall so attend, an order for a change of the place of trial shall be entered in each action and proceeding wherein proper application has been made on the last day of such term, and thereupon such change shall be made.”

The general purpose of this section is reasonably clear; but,, unfortunately, its terms are by no means clear. The purpose was to secure to a party making an affidavit of prejudice a trial before an unprejudiced judge without the transfer of the case to another circuit, and at the same time to secure both parties against a long delay which might easily result were there no limitation on the time within which another judge might be called in. In other words, the purpose was to secure not only an unprejudiced trial, but a trial in the home •circuit, provided a competent judge seasonably attends. It evidently contemplates that there shall always be one term during which the case can be tried, in the home circuit, and that such term shall be a term at which the case is in situation to be moved peremptorily for trial. It clearly does not contemplate that the case shall be sent from the circuit after the lapse only of a term at which it could not be tried. In the present case the affidavit of prejudice was filed in the June term, at which term the case was not triable. At the time of filing the affidavit application was evidently made for a change of venue thereon, and at the same time application was made by the defendant for a stay of proceedings. Another judge was immediately called in and did attend and heard the motion for stay of proceedings, and granted it so far as to prevent the noticing of the ease for trial at the next term. Thus the claim is that the defendant, after making its application for change of venue, by its own act bad been able to deprive the plaintiff of the privilege of having the case tried at the home circuit, a valuable privilege which the statute intended to secure to him. Such a construction of a statute should not be adopted unless the wording of the statute plainly and unambiguously demands it. The command of the statute is that the change shall be made “if no such judge shall so attend f’ and the question is: Did Judge SilveethoeN “so attend” when he came to Hayward and heard the motion for a stay of proceedings in October, 1904? It is argued that he did not, because he was not then called in to try the case, but only to hear a motion at a time when the case was not triable. We do not so construe the statute. The words “so attend” refer back to the previous provisions of the section, and to these provisions we must go to ascertain the meaning intended. After providing that the circuit judge may retain the action until the last day of the current term if the application is made at a term at which the action is triable, or the nest term if it is made in vacation (this latter clause evidently covering an application made at a term at which the action is not triable), the statute says that the judge “m the meantime shall call upon some other circuit judge or judges to attend and hold court during such current term or next term for the purpose of exercising jurisdiction in all actions and proceedings in which applications for change of the place of trial have been made for such reason.” The statute then gives such visiting judge power to hear and decide all matters brought on for hearing during his attendance, and provides that if such judge or judges “can so attend and hold court for such purpose at either such terms, the same shall be done with the same effect” as if an actual change of venue and trial in another circuit had been had. It will be noticed that the requirement is that the presiding judge shall in the meantime call yn another judge for the purpose of exercising jurisdiction and not for the purpose of trying the case alone.

Here the application for change was made during the June term, and .it was coupled with a motion requiring action of the court. Judge Parish could not hear the motion because of the filing of the affidavit of prejudice, but he chose to retain the action in the county, as the statute allows. Therefore he called in Judge Silverthorn to hear the motion and Judge Silverthorn attended. By this course the command of the statute in terms was satisfied. Judge Parish did in the'meantime call upon another judge to attend and hold court for the purpose of exercising jurisdiction, and such other judge did attend and exercised jurisdiction, although he did not try the case. We think Judge SilverthorN did “so attend” within the meaning of the statute, and that there was no error in refusing to change the venue on the last day of the November term, and hence that the action was properly triable in Sawyer county at the June term, 1905.

The second contention of the appellant is that the trial court erred in not staying proceedings in the action until the costs of two former actions brought on the same cause of action had been paid. It appeared by the affidavits submitted that in January, 1903, the plaintiff commenced an action against the defendant to recover for the same injury, alleging in his complaint defective packing of the piston head as the only ground of negligence; that issue was joined and the case noticed for trial at the Hay term, 1903, at which time the plaintiff filed an affidavit of prejudice, and the case was sent to the circuit court for Chippewa county and came on for trial at the October term, 1903; that upon the trial the plaintiff offered to show that the port steam pipe was too small, but that this testimony was ruled out because not within the issue, whereupon the plaintiff asked and was granted leave within ten days to amend his complaint, alleging this new ground of negligence, upon payment of $46, and the cause was continued; that plaintiff failed to'comply with the order and the action was thereafter dismissed, with costs taxed at $183.86; that execution on said judgment was issued and returned un satisfied; that plaintiff commenced another action against defendant for the same injury in February, 1904, alleging in his complaint as ground of negligence inadequate size of the port steam pipe, in •which action issue was joined'and the trial was commenced in June, 1904; that the engineer, Lee, was called as a witness and took on himself the entire Marne for the accident, whereupon the plaintiff’s attorney, being taken by surprise by his testimony, submitted to a voluntary nonsuit, and judgment was entered thereon, with costs taxed at $131.10, which have never been paid; that this action was immediately commenced and a complaint served, alleging the incompetence of Lee as an additional ground of recovery, and that defendant spent about $1,500 in procuring the attendance of witnesses and preparing for the trial of said previous actions. It further appeared by plaintiff’s affidavit that he has no property save a small homestead worth not more than $300, some household furniture, a pony, cart, cow, and calf, worth not exceeding $230 in all; that he has a wife and three minor children, only one of whom is able to earn wages; that. he himself is unable to earn regular wages by reason of his-disability and can earn barely enough to support his family,, and has been unable to pay said judgments or to borrow money from others to do so. The affidavits of the plaintiff and his attorneys tended to show that in their judgment plaintiff has a meritorious cause of action, and, further, that the various actions were prosecuted in good faith and not for the purpose of vexing or harassing the defendant. Whether the present action should have been stayed or not was a question appealing primarily to the discretion of the trial judge, and his ruling thereon will not be reversed except for abuse of such discretion.

The general rule is that, where a plaintiff has been non-suited and brings a second action for the same cause, a presumption arises either that the second action is vexatious or that the cause of action is without merit, and hence that a court will not allow the plaintiff to proceed with the second action until lie has paid the costs of the first. Felt v. Amidon, 48 Wis. 66, 3 N. W. 825. This presumption, however, yields to proof showing that the prosecution of the second action is in good faith, and that the failure of the previous action was not due to infirmity in the cause of action, hut to untoward' circumstances or excusable mistake. When in connection with such proof it appears that the plaintiff is absolutely unable to pay the previous costs on account of poverty and want of credit, a case arises where the court in the exercise of a wise and just discretion may fairly allow the second action to proceed notwithstanding the previous costs are unpaid. Our courts are open for the prosecution of meritorious and bona fide causes of action in good faith. Poverty gives no license to any one to vex or harass his neighbor with unfounded lawsuits. On the other hand, poverty alone should not prevent the needy litigant who presents a meritorious cause of action from invoking the courts to do justice between him and his neighbor. The facts presented on the motion were sufficient, in our judgment, to justify the court in refusing to stay proceedings ; at least we cannot say that there was any abuse of discretion in the ruling.

No notice of injury, as required by subd. 5, sec. 4222, Stats. 1898, was served by the plaintiff, and the present action was not commenced until more than a year after the happening of the accident. The failure to give the notice was pleaded as a defense, and the claim is made that the action was barred by reason of failure to give the notice. The first action to recover damages for this injury was, however, brought and the complaint served within the year. By ch. 307, Laws of 1899, sec. 4222, supra, was amended by adding the following provision:

“When an action shall be brought and a complaint actually served therein within one year after the happening of the event causing such damages, the notice herein provided for need not be served.”

This provision, is not ambiguous. It does not provide that the action in which the recovery is finally had shall be brought within the year, but only that, when an action (meaning, of .course, an action to recover for the same injury) shall be brought and the complaint served within the year, no notice need be served. The condition was exactly fulfilled in the present case. The statute does not make it essential that the previous complaint shall allege the same grounds of negligence as that upon which the recovery is obtained, nor can we add any such requirement by construction. Under the terms of the statute, therefore, no notice was necessary. Passing from these preliminary questions to the trial itself, we meet numerous exceptions to rulings upon evidence, some of which may well be treated in groups.

Evidence was received against objection and exception tending to show that the steam-feed apparatus was defective in not having attached certain-drainage devices called bleeders or traps to drain the water out of the steam pipes at and near the valve, the idea being that by reason of the absence of these devices water accumulated in the valve and washed away the lubricating oil, thus making the valve and lever work hard and become difficult to move and the carriage hard to control. The complaint in substance described in detail the saw carriage and the steam feed and controlling valve, as well as the method of operation of the whole apparatus, and charged that proper methods of construction required that the steam feed and valve should always be subject to the control of the operator or head sawyer; that by reason of the small size of the port pipe the apparatus could not be so controlled, but was likely to get beyond control and endanger the lives of employees working thereon; that there were other defects in construction rendering said machinery dangerous, known to the defendant but unknown to the plaintiff; -that by reason of the careless and unskilful operation of the carriage by Lee, coupled with said defects in construction, Lee lost control of tbe steam, feed and the'carriage moved with snob velocity as to throw the plaintiff down and cut off his leg.

Now, the question is whether the allegation of the specific fact that the ‘port pipe was too small precluded the plaintiff from showing that there were other defects in construction tending to render the apparatus not readily controllable, or, as the witnesses describe it, causing the lever to work hard and the carriage to jerk or stick. The general rule applicable to all actions is that the complaint must inform the defendant of the faats from which it is claimed his liability results, in order that he may prepare to make his defense advisedly. A plaintiff should not be allowed to charge negligence in one respect and upon the trial prove negligence in an entirely different respect. The rule does not, however, require the pleading of mere evidence, but only of the ultimate fact, nor does it require impossibilities. An operative upon or about a machine may know that it did not operate properly and that essential parts were not subject to control, but he may not know, nor be able to find out by reason of lack of expert knowledge, the precise cause of the irregular action, and experts themselves may differ on the question. In suqh cases-the question is whether he must at his peril ascertain the initial cause of the defective operation and set it forth, or whether it is sufficient if he describe the machine and its operation and allege the ultimate fact that the machine was. defective in that it was not at the time subject to control by the lever as it should have" been, and that thereby it became uncontrollable, and that the accident resulted from such want of control. We think the latter course is sufficient, at least as against demurrer or objection upon the trial, although it may be that the pleading would be subject to motion to make it more definite and certain. It is true that in the present case the plaintiff alleged one specific fact which he claimed was a-cause of the uncontrollability, but he also alleged that there were -other- defects unknown to him; and after all the signifi cant and substantial- ground of bis claim of negligence was plainly stated to be that the steam feed and carriage were defective because not subject to immediate and effective control by the sawyer, and we think that this was sufficient to entitle him to introduce evidence of defective construction in any respect which is shown to be effective to produce the uncontrollable condition. We find no error, therefore, in these rulings.

Two witnesses who worked on the same carriage at the time of the trial of the case in June, 1905, were allowed, against objection, to testify that the carriage “worked nice and smooth now.” There was evidence in the record that there was no change in the condition of the machine from April, 1902, until the following season, but there was evidence that there had been a material change between March, 1903, and the time of the trial. The evident effect of the evidence that the carriage ran “nice and smooth now” would be that it could be claimed therefrom that the changes made had been in the way of repairs to the supposed defects after the accident. Such evidence is not admissible. Lang v. Sanger, 76 Wis. 71, 44 N. W. 1095. An expert witness was allowed to testify that the apparatus did not work perfectly in March, 1903, but bothered at times. This testimony was admissible, because the evidence showed that there had been no changes between the time of .the accident and the time when the witness examined its operation.

A hypothetical question, asked by the court of this same witness, which assumed that there was some trouble with the steam feed, which caused the carriage to jerk and start and stop suddenly, and which asked whether it was practicable to remedy the trouble, was objected to as assuming facts not supported by the evidence. This objection is not tenable, because there was some evidence that the carriage would stop and start abruptly with a jerk. The witness Wallace, an expert, was allowed to answer a very long hypothetical question against objection, and the ruling is assigned as error, but, as counsel has not seen fit to specify in what respect the question failed to correspond to facts in evidence, we do not deem ourselves called upon to search them out. One of the plaintiff’s expert witnesses testified on cross-examination that the opening from the valve chamber into the port pipe did not wholly control the amount of steam going into the pipe, and was then asked why not. An objection to the question was sustained, but it is very clear that the question was entirely proper.

There were a number of rulings excluding expert evidence offered by the defendant which were clearly erroneous, and while in a number of these instances the evidence seems in fact to have got in after the ruling, we will briefly name the instances as a guide upon a new trial. In this class is the ruling excluding evidence that it was a physical impossibility for the difference in the size of the port pipe and the supply pipe to affect the working of the valve; that the difference would have no effect on the accumulation of water; that the Dittbenner valve (being the valve in use in this apparatus) is in general use in Wisconsin and in this section of country; and that it is manufactured and supplied by reputable makers of sawmill machinery. In this class also are the rulings excluding questions as to the effect of the running of the carriage against the bumper on the movement of the plug in the valve; the effect of water in the valve on the movement of the sawyer’s lever; whether it is possible for the valve to reverse without movement of the lever; whether a certain six-inch pipe was in accordance with the usual construction; and whether it was physically possible for the carriage to run back after striking the bumper without movement of the sawyer’s, lever.

The defendant placed the plaintiff on the stand as an adverse witness, and sought to show by him that the action was prosecuted under a champertous agreement with his attorneys. The plaintiff produced-the written agreement, which contains nothing of a champertous nature, and testified that he had no other arrangement of any kind with his attorneys. Numerous questions were asked him as to sóme additional understanding with his attorneys, but he again denied that he had any other agreement except the written one, and finally the court sustained an objection to further examination upon the subject. There was no apparent prospect of any result from the examination. It seemed much like a mere fishing excursion, and we think that after the witness had twice denied that there was any agreement except the written agreement, and had produced it, the court was amply justified in stopping the examination.

The defendant moved for a directed verdict in its favor on the ground that no negligence was shown, and that, if negligence was shown, it was not the proximate cause of the injury. This motion was denied, and the defendant vigorously assails the ruling. Examination of the evidence satisfies us that the motion was properly denied. There was evidence on the part of three employees in the mill, who either worked on or about the carriage, that for months before the plaintiff’s injury the carriage jerked. Dahl, a carriage rider, testified that at times the lever worked hard, and that at these times the carriage would jerk, nearly throwing him off; that the head sawyer complained of this to the superintendent; that the carriage was sticking and jerking on the morning of the injury, and that the head sawyer had to take hold of the lever three times to get the carriage back to the log deck; that the lever frequently worked so hard that the sawyer had to grip it with both hands. Eykrnd, another co-employee, who was working as a setter on the other saw carriage on the day of the accident, but frequently had been a rider on the carriage in question, testified to the same condition of things in substance; that the carriage jerked when the sawyer stopped it; that it would stop abruptly and start abruptly with a little jerk, and he could not stop it at the place where he wanted to. Johnson, another co-employee and a carriage.rider, testified to much the same effect as to the jerking of the carriage and as to the complaints to the engineer and superintendent, and that when the feed worked hard it would give the men on the carriage a jolt and would make it harder for the engineer to move his lever. The head sawyer, Magnuson, was not present, and his testimony was not taken. Here certainly was considerable evidence tending to show that the lever and valve frequently worked hard, so as to require much effort on the part of the sawyer to reverse the motion of the carriage, and that the mill superintendent had been notified of the fact. It is not disputed that the carriage ran against the bumper when Lee, the engineer, was testing it under full head of steam, and that the crash threw the plaintiff down with his leg in front of the saw. This crash must have resulted either because the lever was not reversed at all or because it was not reversed soon enough. Now, while the engineer, Lee, testified in substance that the carriage ran smoothly, and that it struck the bumper because he was rattled and did not reverse quick enough, he further testified that he did not pretend to remember just how it happened, and we think it was fairly within the province of the jury to decide whether the alleged difficulty in operating the valve was not in part the cause of Lee’s failure to seasonably reverse the lever.

It is said further that there was no sufficient evidence of the incompetence of Lee, the engineer, or, if there was, that there was nothing to show that such incompetence had any causal connection with the accident. Lee, however, testified that he had no education as an engineer; that he had acted as engineer at this mill five seasons before the accident, having previously been a millwright; that when he went to work as an engineer he did not claim to have had any experience; that he was not then a competent engineer, and so told the superintendent of the company when he took the position, and the understanding was that they took .all the responsibility; that he studied engineering books and papers while employed, and did not know whether he would now call himself a competent •engineer; that his duty as engineer required him to look after the onachinery, including the steam feed, and see that it was working properly; that complaint was made to him on the morning in-question that the steam feed was not working -right, and he went to investigate, and took hold of the lever •and ran-the carriage back and forth a few times and felt nothing wrong, when the sawyer told him to open the valve full and he did so, and it got away from him and the carriage •struck the bumper; that after he did reverse he was too ex-•eited to stop it before it got to the saw and he lost control of it; that he never before ran any carriage operated by steam feed by the use of the lever at full speed or with a full head ■of steam.

We think there was sufficient evidence here to take the question of Lee’s alleged incompetence to the jury, as well as the accompanying questions whether such incompetence was known, or should have been known, to the defendant, and whether the accident was either wholly or partially the result •-of such incompetence. In this connection it is proper to observe that the eighth question of the verdict is not well framed •and should be amended upon a new trial. It asks whether the injury was caused by the incompetence or want of skill •of Lee. The sole inquiry in this respect is whether it was proximately caused by the incompetence of Lee, and the question should be framed to put this question only. If the words “want of skill” mean incompetence in the question as framed, •then they are surplusage. If they mean something different, then they are not only immaterial but make the question •double.

The defendant requested the submission of a number of •more specific questions as a part of the special verdict, but we think that, while the verdict as submitted was not ideal, still with the exception above noted and another now to be stated 4t fairly covered the issues.

Under the ruling of this court in Lowe v. Ring, 123 Wis. , 101 N. W. 698, it seems to be a very serious question whether questions 7 and 10 of the special verdict are not defective for duplicity. They ask whether the company knew or ought to have known. These are separate facts. Part of the jury may think the company knew and part that it ought to have known, but the entire jury may not agree on either fact. This question is not raised on the appeal and we do-not decide it, but upon another trial separate questions should be asked covering these propositions.

It may be noted in passing that the twelfth question is not quite accurate, but the inaccuracy is favorable to the defendant. It is not necessary that the majority of millowners under the same circumstances should have reasonably foreseen that Lee’s incompetence would be likely to cause an injury to the plaintiff, but only that it would be likely to cause an injury to-another. Meyer v. Milwaukee E. R. & L. Co. 116 Wis. 336, 93 N. W. 6.

After the close of the evidence and before the argument of the cause to the jury, the defendant requested the giving of fifteen instructions, all of which were refused, and error is alleged upon the refusal to give several of them. It is attempted to justify the refusal of all the instructions upon the ground that they were not submitted in time within the provisions of Rule VIII of the Rules of the Circuit Court for Sawyer county. This rule reads as fellows:

“Should a party to a jury trial desire the court to instruct the jury on a proposition of law he must submit his request in writing before he shall first rest his case, and he shall cite the authorities upon which he relies to support each proposition or the court will not' consider such request.”

If this rule be valid it seems to be a complete justification of the ruling of the court, but in order to be valid it must of course be reasonable. The right to present instructions applicable to the case and have them given to the jury if they state tbe law correctly is an ancient right, recognized and guaranteed by our statutes (sec. 2853, Stats. 1898), subject to the limitation that they must be in writing. Hacker v. Heiney, 111 Wis. 313, 87 N. W. 249. No rule is reasonable which substantially impairs these rights. That this rule does this cannot be doubted. Under it a plaintiff must present his proposed instructions before the evidence for the defense is introduced and at a time when he cannot know what form that evidence will take, and a defendant must submit his instructions before plaintiff’s evidence in rebuttal is heard. To know what instructions would be proper or applicable in advance of the giving of the testimony to which it is to apply, the counsel must be a prophet as well as a lawyer. There may be such lawyers, but they form the exception rather than the rule in this jurisdiction. Nor can it be held that a request to give a correct instruction can be denied without error simply because an authority is not cited to enforce it. In both respects we regard the rule as entirely unreasonable and hence void.

Among the instructions so requested are the following, which stated correct legal principles applicable to the case and were not covered by the general charge:

“(Y) You are instructed that you cannot find that Eeodor Lee was incompetent unless you find that he was so deficient in the qualifications necessary to perform his work as an engineer as would make it an act of negligence on the part of any one to employ him in such capacity who had knowledge of such disqualifications. . . . (9) You are instructed that, if the plaintiff failed to exercise any want of ordinary care, however slight, which contributed to his injury, then you must answer question number 5 'Yes.’ (10) You are instructed that the burden of proof as to questions numbered 3, 4, Y, 8, 10, 11, 12, 14, and 15 is upon the plaintiff to satisfy your minds by a fair preponderance of the evidence to a reasonable certainty that said questions should be answered in the affirmative, and unless you are so satisfied you should answer said questions 'No.’ ” . •

The error in refusing the tenth requested instruction is emphasized by the fact that the court in its general charge on the subject of the burden of proof gave only the positively erroneous charge that each question “must be answered according to the preponderance of the whole evidence and all the circumstances of the case.” Anderson v. Chicago B. Co. 127 Wis. 273, 106 N. W. 1077.

Another instruction was asked upon the subject to the effect that disputed Questions of fact could not be determined upon mere conjecture, but that there must be some direct evidence of the fact or evidence tending to establish circumstances from which the jury could reasonably say that the inferences therefrom clearly preponderate in favor of the existence of the fact. This instruction is inaccurate, in that it requires a clear preponderance of the evidence in order to justify a finding. This is not the rule in civil actions, except in cases of alleged fraud or actions brought to set aside solemnly executed written instruments.

Another requested instruction was to the effect that the jury could not find the engineer, Lee, incompetent from the fact that he may have been guilty of one or more isolated acts of negligence. This was too broad a statement. Proof of a single act of negligence is not sufficient to raise an inference of incompetence (Kliefoth v. N. W. I. Co. 98 Wis. 495, 74 N. W. 356), but proof of many such acts may, and the instruction might easily be construed as meaning that incompetence could not be inferred from proof of many acts of negligence.

The following instruction was asked, and seems to contain a substantially correct statement of the law (Maitland v. Gilbert P. Co. 97 Wis. 476, 72 N. W. 1124):

“(8) You are instructed that the duty of the defendant was to use ordinary care and diligence in respect to employing competent servants, having regard always to the character of the particular service and the consequences that might result from i'ncompetency in sucb service. If tbe defendant exercised sucb care and diligence in retaining in its employ Re-odor Lee at tbe time of tbe accident, tbe defendant was not guilty of negligence in so doing, notwithstanding tbe fact that Reodor Lee may bave been incompetent at sucb time, and notwithstanding tbe fact that an injury to tbe plaintiff may bave resulted by reason of sucb incompetency.”

However, as tbe instruction was general and does not apply to any question of tbe verdict, tbe refusal to give it was not error.

An instruction to tbe effect that, if Lee reversed tbe lever and caused tbe carriage to run towards tbe saw just prior to tbe accident, tbe jury could not find that negligence in tbe construction of tbe steam feed was tbe proximate cause of the-injury, was properly rejected, for tbe reason that, as before-indicated in this opinion, we think tbe evidence was sufficient to take to tbe jury tbe question whether tbe alleged sticking of tbe valve was not instrumental in producing Lee’s failure to-reverse tbe lever in proper time. Upon the question of' proximate cause tbe court instructed tbe jury that it was “the-immediate, direct, actual, natural, efficient, and real cause.”' This was inaccurate but not prejudicial, because it placed a heavier burden on tbe plaintiff than the correct rule, which has so often been laid down by this court that we do not repeat it here. Moreover, the elements of fact constituting proximate cause having been found in answer to specific questions, an inaccuracy in the definition is not harmful. Upon another trial, however, if a definition be given it should be the correct one.

A claim is made that the verdict is excessive, but we are unable to so regard it.

We find no other contentions that require discussion.

By the Oourt. — Judgment reversed, and action remanded for a new trial.