Smale v. Wrought Washer Manufacturing Co.

151 N.W. 803, 160 Wis. 331, 1915 Wisc. LEXIS 103

• Court: Wisconsin Supreme Court
• Decided: March 23, 1915
• Status: Published

Opinion

Wifslow, O. J.

It appeared that both the Andrae Company and the defendant had prior to this accident elected to become subject to the provisions of the Workmen’s Compensation Act (secs. 2394 — 1 to 2394 — 31, Stats.), and the defendant’s first claim is that on account of this fact the defendant is not liable to an action at law. The claim cannot be sustained. The purpose and effect of the Workmen’s Compensation Act is to control and regulate the relations between an employer and his employees. As between them the remedies there provided are exclusive when both are under the act at the time of the accident. The law does not attempt in any way to abridge the remedies which an employee of one person may have at law against a third person for a tort which such third person commits against him, unless it be in a case such as is provided for by sec. 2394 — 6, Stats. 1913 (ch. 599, Laws of 1913). The present case does not come within that section and hence it is unnecessary to consider its effect. The principal contentions of the defendant are that it should have been Held as matters of law (1) that there was no negligence on the part of the defendant and (2) that there was contributory negligence on the part of the plaintiff.

Neither of these claims can be sustained. There was ample evidence to show that the defendant, through an employee designated by the foreman for the purpose of making the necessary arrangements for the plaintiff’s work, agreed that the plaintiff should work on the track and should be notified by the craneman in case of danger. He was not notified, and it was clearly a question for the jury whether the failure to notify him was negligent. If such failure was negligent, its proximate relationship to the accident cannot admit of doubt.

Just as clearly the question whether the plaintiff was guilty of contributory negligence was for the jury. It is quite probable that a very careful man would have himself notified the ■craneman when he went up on the track on the second day, but we cannot say as matter of law that the man of ordinary care would have done so.

The final claim made is that the damages are excessive. The plaintiff was an electrician forty-four years of age and earning at the time of the accident $85 to $95 per month. Were his pecuniary loss the only consideration, we should have no hesitation in holding that the damages were excessive. But there are other very serious and persuasive considerations. The plaintiff was terribly lacerated and crushed in the region of the lower part of the spine and the buttocks; there was a comminuted fracture of the spine, the sphincter muscles of the rectum torn and lacerated, the rectum itself separated from the spine, and for weeks he suffered intense pain; at the time of the trial the inner sphincter was partly healed, but the outer one is still open and probably never will heal; there are still three openings or sinuses discharging pus; he has little control of the bowels, has to wear a pad all of the time on account of the discharges from the backbone, is unable to sit down as he should, and after he is up from one to two. hours is afflicted with backache which continues until he lies down again. He has been able to do nothing at his trade since his injury. Necessarily he must be an unwelcome guest anywhere and will suffer mental anguish on account of his offensive physical weaknesses until the end of his life.

.We should have been better satisfied had the jury found a less sum as damages, but we feel unable to pronounce them excessive.

By the Cow't. — Judgment affirmed.