Willette v. Rhinelander Paper Co.

130 N.W. 853, 145 Wis. 537, 1911 Wisc. LEXIS 75

• Court: Wisconsin Supreme Court
• Decided: March 14, 1911
• Status: Published

Opinions

Mabshalx, J.

Did the trial court err in awarding judgment to tbe defendant? That is tbe main question though some minor propositions are' involved. To properly consider tbe major matter tbe purpose of sec. 1636/, Stats. (1898), as settled by judicial construction, must be appreciated. There is little room for want of such appreciation in view of tbe numerous instances in recent years where tbe court has dealt with tbe matter. In tbe aggregate almost every conceivable phase of tbe subject has been judicially treated and some of them over and over again, yet tbe record here shows there is some misunderstanding.

Tbe vital words of tbe statute are, “all belting, shafting, gearing, . . . which are so located as to be dangerous to employees in tbe discharge of their duty shall be securely guarded or fenced.” If the statute does not create a higher duty than that at common law it prescribes a statutory requisite of ordinary care on tbe part of tbe master and by necessary implication prescribes conditions which will give rise tó a prima facie inference of negligence as matter of fact. It does not create a rule of absolute liability.

It seems tbe court at first was inclined to bold that a violation of tbe statute establishes negligence creating liability defendable against only by contributory negligence in "the ordinary sense, not including that special form denominated assumption of the risk. It was held in Klatt v. N. C. Foster L. Co. 97 Wis. 641, 73 N. W. 563, thus:

“Absence of the guard was negligence per se. ... A failure to perform the duty so imposed constitutes actionable negligence at the suit of a person of that class, injured by such :failure of duty, without contributory negligence on his part.” '“Where a statute requires an act to be done or abstained from by one person for the benefit of another, then an action lies in the latter’s favor against the former for neglect in such act •or abstinence, even though the statute gives no special remedy. The imposition of a penalty by the statute does not take the place of the remedy by suit for negligence, unless the penalty ■be given to the party injured in satisfaction for the injury.”

That was but a redeclaration of what was said in earlier decisions. McCall v. Chamberlain, 13 Wis. 637; Dunnigan v. C. & N. W. R. Co. 18 Wis. 28; Athinson v. Goodrich T. Co. 60 Wis. 141, 18 N. W. 764; Toutloff v. Green Bay, 91 Wis. 490, 65 N. W. 168.

It may be that all who concurred in Klatt v. N. C. Foster L. Co., supra, did not intend to hold that mere failure to comply with the statute was sufficient to create an inference of culpable negligence as matter of law, instead of an inference -of fact in that regard rebuttable by showing that the failure did not involve any want of ordinary care in fact, as use of the term “negligence per se" would indicate, or intend to hold that the purpose of the statute or its necessary effect is to preclude defeating an otherwise meritorious claim on the ground of assumption of the risk, as use of the term “actionable negligence at the suit of a person of that class, injured 'by such failure of duty without contributory negligence on his part,” might well, as an original proposition, be said to indicate. But any obscurity in that respect was removed by -subsequent decisions.

The logic most favorable to employees was carried forward into Burns v. C., M. & St. P. R. Co. 104 Wis. 646, 80 N. , without clearing up any existing uncertainty. But whether the legislative purpose was to abolish the defense of assumption of the risk was negatived by Helmke v. Thilmany, 107 Wis. 216, 83 N. W. 360, opinion by the then Chief Justice, declaring, in most emphatic language, that neither the’ defense of contributory negligence nor assumption of the risk was affected by the statute, citing Thompson v. Edward P. Allis Co. 89 Wis. 523, 530, 62 N. W. 527, and several previous cases under similar statutes. Thus the defenses were referred to as distinct, rather corroborating the idea that when Klatt v. N. C. Foster L. Co., supra, was written it was thought that only the defense of contributory negligence was preserved.

It should be noted, in passing, for accuracy of history, that neither in Helmke v. Thilmany, supra, nor any case cited therein was assumption of the risk necessarily mentioned or involved. The sole subject of controversy was contributory negligence, strictly so called. Eor myself, though I concurred in the decision, as I now read the case it seems contributory negligence was mistaken for assumption of the risk. I may well further observe that the present Chief Justice and Justice Dodge dissented upon the ground, as would appear by language used, that the turning question was assumption of risk though it would seem to the writer contributory negligence was really in mind. The distinction between the two-phases of conduct is so shadowy, it is not to be wondered at that one is sometimes spoken of when circumstances more-clearly characterizing the other are -in mind.

However, Helmke v. Thilmany, supra, was followed in Kreider v. Wis. River P. &. P. Co. 110 Wis. 645, 86 N. W. 662; Upthegrove v. Jones & Adams C. Co. 118 Wis. 673, 96 N. W. 385; Walker v. Simmons Mfg. Co. 131 Wis. 542, 111 N. W. 694, firmly establishing as a rule of construction of sec. 1636/ the doctrine announced as stated, though it seems to the writer, looking backward, that in these cases the distinction between tbe two phases of contributory negligence, one of wbicb strictly speaking is not such negligence at all, was not kept clearly in mind. In most of them, possibly all of them, assumption of the risk was not necessarily involved, in the judgment of the writer. That this challenged the attention of the lawmaking power leading to the act of 1905, passed before the last case cited originated, is most natural.

The foregoing leads up to the other feature of sec. 1636/ which more particularly concerns this case, viz., whether its purpose was to make duty to guard, when otherwise the situation would be dangerous to employees in the discharge of their duties, absolute, rendering failure to comply, under all circumstances, culpable negligence as matter of law, as is perhaps inferable from Klatt v. N. C. Foster L. Co. 97 Wis. 641, 73 N. W. 563, instead of inferable as matter of fact only and so rebuttable by proof of guarding or fencing in the ordinary way, that not being obviously a dangerous way, and leaving to the employer some reasonable measure.of discretion as to whether the situation in any case is within the statute and if so as to the manner and means of complying therewith.

- On the subject last referred to the second alternative suggested was, seemingly, adopted as the test of actionable negr ligence in Guinard v. Knapp-Stout & Co. Co. 95 Wis. 482, 70 N. W. 671. The statute must have been there in mind because the situation dealt with was clearly within it, though it was not mentioned. It was held that the test of prima facie liability on the ground of negligence fixed by law was whether all safeguards were provided which the great mass of mankind ordinarily furnish under the same or similar circumstances; that the employer may not be required to'be wise beyond that standard, and, in effect, that any other standard would be impracticable and unreasonable and might render the success of any legitimate enterprise impossible. That was in terms or effect repeated in many subsequent cases dealing with, statutory situations, though, it must be admitted, generally speaking, that the statute was not referred to, showing definitely that it was in mind. Some of the cases— enough to indicate quite clearly the type of all — -were mentioned in the recent case of West v. Bayfield M. Co. 144 Wis. 106, 128 N. W. 992, where the doctrine of the Gurnard Case was emphatically held to apply to the statute and that such had become the settled law before the act of 1905. It was thought that the long line of decisions referred to must have been made in view of the statute and that the rule thus developed, right or wrong, had become so firmly established as a part of the written law as if literally embodied in it. Out of the large number of decisions referred to — to the end that the obscurity, if any existed, might be cleared up — this was evolved as expressing the legislative intent: Except as to situations obviously dangerous “if the employer furnish such a guard as is in general use among employers of ordinary caution in the same line of business and under the same circumstances, he has discharged the duty imposed upon him, and the guard so furnished is in a legal sense reasonably safe and the dangerous machinery has been securely guarded within the meaning of the statute. This rule of law requires the master to exercise ordinary care in providing a guard or fence for such machinery as is required to be guarded or fenced.” 144 Wis. 117.

The latter expression was grounded on Powalske v. Cream City B. Co. 110 Wis. 461, 86 N. W. 153, approved in Hamann v. Milwaukee B. Co. 136 Wis. 39, 116 N. W. 854; Miller v. Kimberly & C. Co. 137 Wis. 138, 118 N. W. 536. The idea therein conveyed is that whether a situation needs guarding or fencing for security as to dangers to employees must, necessarily, be a matter of judgment, as well as the extent and manner of guarding or fencing; and, as the law leaves that to the employer, it cannot be expected of him that he must exercise more care and judgment in respect to when and when not to guard or fence, or a higher degree of care in executing the conclusion, in case of it being in favor of the protection, than is generally brought to bear on similar situations by the great mass of mankind under the same or similar situations; nor that after he has used such judgment he shall nevertheless be liable criminally and civilly for consequences of danger which could not have been reasonably foreseen from the standpoint of ordinary human foresight — in that respect that the statute should have the ordinary construction of ordinary penal provisions which do not express, unmistakably, a legislative purpose to deal with individuals. engaged in legitimate business with extraordinary severity. It was thought this not only followed quite clearly the letter of many previous decisions but the logic of the whole body of unwritten law in this state respecting similar situations.

Even where by written law it was first provided that a railroad should fence its right of way or in default thereof be liable for damages to any person injured, it was held that the defense of contributory negligence was not abrogated and that the requirement was the exercise of a degree of diligence no greater than that of a town in respect to a highway. Curry v. C. & N. W. R. Co. 43 Wis. 665. It may well be said in passing that the element of reasonable anticipation is held to be essential to actionable negligence in highway cases the same as others dependable upon breach of duty to exercise ordinary care. Fehrman v. Pine River, 118 Wis. 150, 95 N. W. 105. In view of the doctrine of the Gurry Case the railroad statute was amended so as to substantially, in express terms, abrogate the defense of contributory negligence in actions for damages for failure to fence a railway right of way; Quackenbush v. Wis. & M. R. Co. 62 Wis. 411, 22 N. W. 519, it being appreciated that unmistakable language was necessary to effect that result.

In Dugan v. C., St. P., M. & O. R. Co. 85 Wis. 609, 55 N. W. 894, if was held, in a similar situation as above, that the defense of contributory negligence may be expressly given by statute and can only be taken away by express or unmistakable legislative language. So in case of the situation, in absolute terms, of a duty to do some act for the safety of others, even accompanied by an absolute liability for failure to perform the duty, taking the statute literally, and without going further the court will read out of it as having been necessarily intended, an exception saving the defense of contributory negligence unless to do so would, seemingly, actually violate the intent of the written law.

■ The general doctrine requiring the master absolutely to furnish his employee a reasonably safe place to work, has not been carried to the extent of making that duty stand the test of what a jury of twelve men may conceive to be required from their own viewpoint of reasonable safety, but the test of what such a jury may conclude is consistent with ordinary care which is said to be no greater than what is customarily done in the same or in similar situations. Boyce v. Wilbur L. Co. 119 Wis. 642, 97 N. W. 563.

The safe-place rule of the common law is as absolute as the statute in question and statutes in general creating duties respecting the personal safety of individuals, and yet, it will be seen by investigation that negligence is the foundation principle governing all, both from the standpoint of the employer and that of the employee, and that the general rules of what constitutes negligence are supposed to be embodied in the written law in the absence of unmistakable language in such statutes to the contrary.

Much more might be said on the subject above discussed but this is not necessarily the occasion for it. Hardly any need of it is liable to be imperative in any situation in view of the full discussion and establishment of definite rules in respect to the matter drawn as supposed from the letter and logic of many decisions, in West v. Bayfield M. Co. 144 Wis. 106, 128 N. W. 992. True, there was room for fair difference of opinion, in view of tbe initial declaration respecting tbe statute'in Klatt v. N. C. Foster L. Co. 97 Wis. 641, 73 N. W. 563, and expressions in opinions bere and. there following that case. One with firm convictions, from an original standpoint, as to tbe intent of tbe legislature, might read such expressions, consider tbe trend of decisions, and come fairly to one conclusion, and another with or without a different view of tbe written law from such original standpoint might survey tbe body of unwritten law concerning it in tbe light of tbe logic dominating tbe whole, that it is failure to do that which is in general supposed to be efficient under tbe same or similar circumstances, which constitutes tbe real derelict of the unwritten law and that of tbe statute as well, in tbe absence of unmistakable language to tbe contrary, and might come to a different conclusion, as was tbe case in West v. Bayfield M. Co., supra, where doubtless all that could well be said from either viewpoint was expressed and tbe state of tbe law definitely determined.

Facing what has been said it is not difficult to discover tbe intent in sec. 1636/; which particularly concerns this case. It was doubtless seen by tbe legislature that neither tbe defense of assumption of tbe risk nor that of contributory negligence was disturbed by sec. 1636;] nor was tbe rule of absolute liability — liability regardless of fault by tbe ordinary standard of human foresight — substituted for tbe ordinary standard of care; that efficient negligence on one side was still tbe ground of liability and freedom from such negligence, in tbe broad sense, tbe condition of enforcing such liability. So with a view of removing any possible uncertainty as to tbe precise test of duty and removing at tbe same time to some extent common-law conditions of enforcing it, tbe new section Was added to tbe written law as sec. 1636;’;’ providing thus:

“In any action brought by an employee or bis legal representative to recover for personal injuries, if it appear that tbe injury was caused by tbe negligent omission of bis employer to guard or protect bis machinery or appliances, or the premises or place where said employee was employed, in the manner required in the foregoing section, the fact that such employee continued in said employment with knowledge of such omission, shall not operate as a defense.” Laws of 1905, ch. 303.

Note the significant words in the new section “negligent omission of his employer to guard,” etc. Obviously it was not intended to recognize two classes under sec. 1636/, one guilty of failure to guard, regardless of negligence in the matter, and one negligently failing to guard. Any failure under see. 1636/ was evidently in contemplation as a “negligent omission to guard,” that term being used so that the written law would in its letter conform to the construction given by this court to such section.

If the desire of the lawmakers had been to increase the duty of employers to the point inferable, in one view from Klatt v. N. C. Foster L. Co., supra, they might easily have done that. If the thought was that the existing rule of the statute did not contemplate the ordinary standard of human duty to be the test of liability, certainly the language used would have been that of the section to which it was supplementary, viz.: “if it shall appear that the injury was caused by the omission of his. employer to guard,” etc., instead of by “the negligent omission to guard,” recognizing negligence, by necessary inference, to be the dominating feature of the existing law. Again, if it had been thought to wholly abolish the defense involving conduct of the injured person the legislature might easily have used language expressing that purpose instead of “the fact that such employee continued in such employment with knowledge of such omission will not operate as a defense” — that is, the one fact commonly held to-show assumption of the risk as matter of law and so establish a defense, shall not so operate. To that extent the court has held the defense of contributory negligence abolished, but 'the law is otherwise unchanged by the new section. Klotz-v. Power & M. M. Co. 136 Wis. 107, 116 N. W. 770; Reffke v. Patten P. Co. 136 Wis., 535, 117 N. W. 1004; Lind v. Uniform S. & P. Co. 140 Wis. 183, 120 N. W. 839; Monaghan v. Northwestern F. Co. 140 Wis. 457, 122 N. W. 1066.

In all of the cases cited the idea that negligent omission of duty is the fault dealt with by the statute is recognized. In Klotz v. Power & M. M. Co., the element of reasonable anticipation, so vital to actionable negligence ordinarily, was clearly recognized as essential to characterize actionable fault under the statute. In the next case negligent omission of ' duty was treated as the dominating essential. In the next the question of whether under all the circumstances, guarding was reasonably necessary from the standpoint of what is ordinarily done in such cases was suggested as vital. That feature is not readily seen in the last case without referring to the instructions, no part of which are preserved in the reports, though the purport thereof one can reasonably infer from the opinion.

Looking at the record here in the light of the foregoing, whether error was committed in awarding defendant judgment instead of the plaintiff and if the latter, whether the case should be so disposed of as to render a new trial unnecessary does not seem to be fraught with much difficulty.

The jury found that the gearing was so located as to be dangerous to employees in the discharge of their duty. Did they find the circumstances such that the failure to guard was a negligent failure’as provided by sec. 1636jj in its letter and by sec. 1636/ as the same has been construed? No question was submitted specifically on that point, but the matter was covered by the manner in which the jury were instructed regarding the interrogatory as to whether the gear was so located as to be dangerous to employees in the discharge of their duty. The judge was very particular on this point, seemingly, fully appreciating that whether the situation was within the statute was not dependable upon what the jury from tbeir point might think, that is by a standard of their own; bnt what they might conclude from the evidence, testing the case by the standard of ordinary care given to them in this language:

“By dangerous as here used is meant such condition existing that an ordinarily prudent and intelligent employer, under all the circumstances stated in the question, ought reasonably to have foreseen .that an injury to the oiler might probably occur by reason of the location and condition of such gearing.”

Generally speaking such an instruction should not be confined to the particular employee but include all employees in the particular factory. That is not material here because no one except the oiler could, within reason, have been thought of as likely to come in contact with the uncovered gear. So it will be seen that the jury found the condition to have been respecting the duty to guard, within the statute according to the construction thereof in West v. Bayfield M. Co., supra.

The next question covered the-subject of whether the statutory duty was performed. In respect thereto the jury found that defendant failed “to have said gearing securely guarded or fenced at the time of plaintiff’s injury.” The instruction at this point made prominent the idea that negligence was the controlling feature of actionable fault. The court said, “a gearing is securely guarded or fenced when it is so guarded or fenced that it would not be dangerous to any employee required to work in its vicinity if such employee uses ordinary ■care for his own safety.”

Here we may well remark, in passing, that while the instruction was sufficient for the case it was too restrictive to be a safe model for all cases. So far as necessary to this case it followed Powalske v. Cream City B. Co. 110 Wis. 461, 86 N. W. 153; Miller v. Kimberly & C. Co. 137 Wis. 138, 118 N. W. 536; and similar cases. The language of the statute is not that the particular situation shall be guarded against dangers to employees “required to work in its vicinity” but to guard where “dangerous to employees in the discharge of their duties” — any employee as said in effect in Miller v. Kimberly & C. Co. whom the master would have reasonable ground to anticipate might in the exercise of ordinary care be otherwise jeopardized in his personal safety.

So the jury found the statutory requisite of culpable negligence, viz., duty to guard — because it was negligence not to do so in that, as said in Powalske v. Cream City B. Co., “a person of ordinary intelligence and prudence, circumstanced as defendant’s officers or those having charge of its business were,” would have apprehended that otherwise it “might probably cause a personal injury to some employee while in the discharge of his duty” — and failure to guard. That would seem to have left, in due course, only the question of whether the culpa in an unbroken chain of circumstances reached the point of injury and efficiently produced it — the fault having the essentials of proximate cause, most of which were covered by conclusions already reached — without any efficient contributing negligence of appellant, distinct from the assumption of risk abolished by the statute.

At this point, unfortunately, the trial court injected into the case a somewhat foreign element. The conditions of the statute being satisfied and there being no contributory negligence on the part of appellant, as the jury found, liability followed absolutely, as it seems. The statute as construed leaves no fair room to doubt but that such circumstances as were found make a clear remediable wrong. To inject any other independent circumstance into such a case might well create confusion under any circumstances. To inject such foreign element into the case as in itself controlling might or might not, according to the finding, nullify the statute as regards the particular case.

The foreign circumstance referred to is indicated in this question: “If you answer question No. 6 ‘Yes’ [that is, find the failure to guard], then was it practicable to have securely guarded such gearing so as to render it reasonably safe for plaintiff to do his work without a ladder?” The intent of the statute is that if an employer maintains a situation within it, which as an ordinarily prudent man he ought reasonably to apprehend may cause a personal injury to any of his employees in the discharge of his duty, he must hold himself responsible for the consequences proximately produced thereby to any such employee without his contributory negligence. In that situation the rule of the statute is inexorable. The charity of the law as to the employer has been exhausted. There are only left its penalties from which there is no escape under the law as it stands. It is no defense or excuse as regards civil remedies that it is not practicable to guard against the danger or to efficiently do so without some particular instrumentality, as in this case a ladder. If such particular instrumentality is essential to an effective guarding or fencing, then failure to supply it, as here, is involved in and part of the failure to securely guard or fence. We fully agree with counsel' for appellant that the statute prohibits a person from using machinery under such conditions that, from the standpoint of ordinary care, the situation will imperil the personal safety of his employees in the discharge of their duties in the exercise of ordinary care. It is no answer to a case satisfying the statutory conditions that it was impracticable to comply with the statute. The police power, as the statute has been construed, was not exceeded in passing it. Therefore, the duty to comply therewith is absolute.

We are not unmindful the trial court may have been misled by some expressions in opinions of this court. It is exceedingly difficult to discuss at length the status of a given situation as regards legal liability, and avoid using any expression which cannot be made to do service in producing error in any other situation. Thus in Lind v. Uniform S. & P. Co. 140 Wis. 183, 120 N. W. 839, it was said, as if referring to a vital matter under tbe statute, “there can be little doubt that the open unguarded trap door created a situation of danger for employees working around the opening, and it was a question for the jury to determine on the evidence whether such opening could be guarded without unreasonably interfering with the work that was being carried on, and which could not be performed with the doors closed.” On the facts there under consideration the quoted language was probably legitimate. There was no thought, however, of holding, as to- a case within the statute — one where a reasonably ^prudent man would or might reasonably apprehend injury to his employees or some one of them in the discharge of duty in the exercise of ordinary care without the protection contemplated by the statute — that unreasonable interference with operations by providing such protection, is a defense for failure to do so.

The same is true of an expression found in Monaghan v. Northwestern F. Co. 140 Wis. 457, 122 N. W. 1066, impracticability of covering gearing without seriously impairing the efficiency and use of the machine of which such gearing forms part, being spoken of as entering into the subject of whether there was negligent failure to guard or fence within the meaning of the statute. Of course, a machine must be kept sufficiently open so the work can practicably be done for which it was designed. So the statute provides for fencing as an alternative for guarding. It is not reasonably to be apprehended that an employee of ordinary intelligence and experience will allow his person to invade the necessarily open places in a machine. Otherwise operations by machinery would be practicably impossible. The question under discussion seems beside the case.. If it were material in any aspect the ladder feature was not, except in so far as a ladder may be considered, under the circumstances, essential to rendering the guard on the gear sufficient. Further, unless the word “guarded” was intended to include the statutory duty ■to guard or fence — either or both as the case might require — ■ the question referred to but one feature of the statute. Both the failure to guard and failure to fence were charged in the ■complaint. This seems to have been overlooked.

Above all, if the question under discussion and answer, should have the meaning given thereto below, then the answer, it seems, should have been changed to “Yes.” As we see the machine by means of photographs, it was perfectly practical to have boxed the gear in the manner such boxing is ordinarily accomplished in many similar situations within ■common knowledge. It is no answer to that, in view of the record, to insist the evidence shows the gear was boxed so far •as customary respecting such machines; first, because there is no evidence that it is customary to locate such machines •for operation and make no provision for reaching the parts to be oiled and examined from time to time without danger of coming in contact with the gears, as was the fact in this ■case; second, because it seems obvious that such exposed gears ■can be easily fenced so an employee can do his work about the machine in the exercise of ordinary care without danger ■of being perilously near thereto.

Following the last question treated the jury found that '“such failure to guard and fence the gearing” was not the proximate cause of the injury to appellant. There, it will be seen, the term “guard” as well as the term “fence” was used in the conjunctive, preceded by the word “such,” while the antecedent found in the preceding question is “guard” and the court in the opinion on the motion after verdict and Before judgment ■ gave point to the idea that only failure to '“guard” was involved.

It seems best to speak of these numerous errors and inad-vertences as an indication of the care required to avoid such results as happened in this case. It is not to be wondered at that the jury, after having reached the question under discussion, were perplexed as to their duty in respect thereto and returned into court for some explanation. The practice at this point is not to be commended — calling the jury into court and allowing them to publicly declare the state of their deliberations, interrogating them openly as to what question they are considering and what questions have been answered and then changing instructions theretofore given to fit the situation.

The secrets of a jury room should not be disclosed in the public way indicated, if at all, till the final delivery into court. Till the end it is competent for the jury to change answers according to their convictions.

It is further not to be wondered at that the meaning of the verdict at last has to be read by the court out of some obscurity by construction, or that there has been difference of opinion up to this time whether it, was read rightly, and differences among the jurors leading them after they were discharged to interview the judge in respect to what they intended to find and to make conflicting affidavits in respect thereto.

It is considered that the question under discussion should have been answered in the affirmative, as a matter of course,, following the answers finding all the conditions of culpable negligence. Looking at such found conditions, the instructions, and the undisputed evidence, there was no room for fair controversy but what failure to comply with the statute was the proximate cause of the injury.

If, as the trial court thought, the disturbing ladder feature, given such unnecessary prominence, was supposed by the jury to cut such figure that they could not find the failure to guard and fence the gear of .itself, was the proximate cause of the injury, and so answered the question as they did, then such finding was, in effect, that failure to guard and fence, under the circumstances, was such proximate cause. That would be sufficient for this case in any aspect. So, as counsel for appellant viewed the question, the answer should have been changed to one in his favor. As the trial ■court viewed the question, the negative answer should have beon construed as a finding in appellant’s favor. Lastly, •eliminating the question entirely from the verdict, the parts remaining and the evidence show that respondent’s breach of duty was the proximate cause of the accident. So in view of the finding in appellant’s favor on the subject of contributory negligence it seems clear he was entitled to recover.

It follows that the judgment must be reversed as erroneous, but not, necessarily, that the case must go back for judgment in favor of appellant for the full amount claimed. This court is not bound by any arbitrary rule in respect to the status of the case upon reversal. It is free, under the wise policy of the Code, to send the case back for a new trial, if justice requires it, otherwise not. Justice is the dominating feature of the Code and it is the policy of this court to vitalize that feature upon every proper occasion. To that end cases are uniformly so disposed of as to terminate litigation wherever that can justly be done. The interests of both parties, if not their mutual desires, require it; the interest of the public demands it; the spirit of the Code commands it.

We are well satisfied that the verdict of the jury was excessive. The trial court would have been justified, without motion, in allowing judgment in appellant’s favor only upon condition of his remitting a large part of the jury award. On motion to that effect it would have been plainly the court’s duty to have required such remission. That could have been done then and can now be provided for, compelling respondent to submit to a stated amount at the option of appellant, without prejudicially interfering with the right of trial by jury, if such amount be placed as low as in any reasonable probability any future jury, rightly instructed as to the law and with proper conception of their duty, would be liable to award. Baxter v. C. & N. W. R. Co. 104 Wis. 307, 80 N. W. 644; Rueping v. C. & N. W. R. Co. 116 Wis. 625, 93 N. W. 843.

Tbe appellant was forty-five years of age. He was without any educational fitness for any vocation having never attended school hut three weeks. He was a common laborer, had never been and had no reasonable prospect of ever being anything else. His monthly earnings, when he worked all the time, were possibly as high as $65. He lost the first and second and part of the third finger. He lost in wages up to the time he recommenced work after he was injured $150 to $160. After that he lost about a week’s time upon the occasion of having the third finger amputated. Respondent paid substantially all his medical and surgical expenses. His working capacity, as to some kinds of labor, was somewhat impaired, he suffered the usual amount of pain in such cases, and his hand will not sustain the former amount of use. However, his earning capacity was not greatly diminished. He was taken back after the injury at a raise of wages, the disability not interfering with that kind of work. He worked in his old position quite a long time, then left ■of his own accord and thereafter did substantially full work cutting cordwood, making ties, and performing other labor. 'The hand, down to the trial, continued to trouble him somewhat.

We have endeavored to give a pretty full statement of all there is in the case on which to base an assessment of damages. It is easily seen that the elements measurable with any great degree of certainty are rather small. It is useless to try to name an equivalent for parts of the human body. That subject runs so deeply into the field of conjecture as to render losses caused by deprivation of such parts recoverable on the basis of what one would take as an equivalent, ' impracticable. The naming of a money equivalent for pain and some other matters proper to be considered also go into tbe realms of obscurity that, in the ordinary affairs of life,, they would be regarded too uncertain to be recovered for,, yet they and any bodily disfigurement are regarded as com-pensable in this class of cases, the basis being the reasonable,, sound judgment of reasonable men applied to the evidence.

The expectation of appellant’s life by the ordinary rules is about twenty-four years. His earning cajiacity, in the-whole, for that time, appreciating that such a man rarely averages after the age of forty-five to work anywhere near-full time for the rest of his life and at full wages, would not. very greatly exceed the jury award. Forty-five hundred dollars is equal to a life annuity, purchasable in any standard insurance company, equal to more than two thirds appellant’s-working -capacity for the balance of his days.

Without carrying the logic of the situation further it must-be apparent that $4,500 for appellant is beyond all reason and that a jury of sensible men properly instructed might place the recovery as low as half that sum. The proper-amount of the recovery would probably be the only vital question on another trial. Doubtless the best interests of all parties would be best subserved by having -the controversy closed on the basis indicated, and we will so dispose of the-case as to render that possible at the option of appellant.

By the Court. — The judgment is reversed, and the cause remanded for a new trial, unless plaintiff elects within thirty days after filing the remittitur in the court below to take judgment for $2,250 and costs, which he may do, if he so-elects, on motion therefor and on due notice in the trial court..

SibjbecKER and BaeNes, JJ., took no part.