Baxter v. Chi. & N. W. Ry. Co.

• Decision Date: 20 October 1899
• Court: Wisconsin Supreme Court
• Parties: BAXTER v. CHICAGO & N. W. RY. CO.

104 Wis. 307

80 N.W. 644

BAXTER

v.CHICAGO & N. W. RY. CO.

Supreme Court of Wisconsin.

Oct. 20, 1899.

Syllabus by the Judge.

1. The object of a special verdict is to obtain a decision of issues of fact raised by the pleadings, not to decide disputes between witnesses or controversies over evidentiary facts.

2. The right to a special verdict is satisfied by a submission to the jury of a sufficient number of questions to cover, singly, every material fact in issue under the pleadings which is in dispute on the evidence.

3. In preparing a special verdict, every material fact in issue by the pleadings, controverted on the evidence, affecting the rights of the parties in respect to the final result, should be covered by a question, and those facts from which any such issuable fact may be taken as inferable, may properly be omitted, though questions covering such evidentiary facts may be added in the discretion of the court.

4. Where a cause is submitted for a special verdict, such instructions should be given respecting each question as to enable the jury to answer it intelligently, and a refusal to do so, by the rejection of specific requests to that end, is error, if the subject-matter of such requests be not otherwise covered by proper instructions; but instructions regarding the effect of an answer, or the answers as a whole, should not be given.

5. A question as to whether defects, found by the jury to have existed under such circumstances that the defendant knew or ought to have known of them, were the proximate cause of the injury, was a sufficient submission of the question of whether defendant was guilty of negligence which was the proximate cause of such injury, in connection with instructions given to the jury, that in order for them to find that such defects were such proximate cause they were required to find from the evidence that the defendant ought reasonably to have apprehended that such defects might probably cause an injury to some person.

6. An instruction that the proximate cause, in the law of negligence, is the direct and natural cause, is not proper. It is the natural and probable cause, and from which, in the light of attending circumstances, a personal injury might reasonably have been expected by a person of reasonable intelligence and prudence. Such an instruction, however, is not prejudicial in connection with an instruction limiting what is direct and natural to such things as the person responsible ought in the exercise of ordinary care to have apprehended.

7. The test of whether defendant was guilty of a want of ordinary care in caring for its locomotive boilers, was whether its conduct came up to the customary care exercised by corporations generally in the same line of business, and evidence of an expert as to what care should be exercised to discover defects in such boilers, independent of such general custom, was not relevant except in regard to whether such custom was obviously insufficient; but such evidence was not prejudicial since it accorded with the customary way of inspecting boilers as shown by the evidence.

8. Practical experience of a person, sufficient to fairly show that he is possessed of more than ordinary knowledge in regard to a proper subject of opinion evidence, sufficiently shows competency of such person to give such evidence.

9. The opinion of a witness in regard to the limits of safe boiler pressure, based on a hypothetical question assuming the existence of a material defect not testified to, is error, but not prejudicial where the subject of inquiry is the cause of the explosion of a boiler causing a personal injury, except as bearing on the measure of damages, where the cause of such explosion conclusively appears by other evidence.

10. The claim being that a boiler which exploded and caused the injuries complained of, including the flues thereof, was in a generally worn-out condition, and that because of such condition as to the shell the explosion took place, evidence of the condition of the flues, as well as other parts of the inside structure of the boiler, was proper on the question of knowledge or reasonable means of knowledge on the part of the defendant of the existence of defects in the shell.

11. A plaintiff being in court and no reason appearing why the jury cannot have a view of his injured leg, which is a subject of inquiry, the exhibition of a photographic representation of it and permission to the jury to take such photograph to their room is not prejudicial error if the witnesses on both sides describe the condition of the leg substantially as shown by the photograph and no request is made that they be allowed to see the original.

12. Photographic representations are not proper where the original can be readily exhibited to the jury, unless used to aid in identifying some writing or detecting a forgery.

13. Opinion evidence is the most unsatisfactory kind of evidence that can be produced, and falls to the ground as worthless and insufficient to support a verdict when inconsistent with undisputed facts or reason and common sense applied to other credible evidence.

14. Where a judgment in favor of a plaintiff in a personal injury action is right as regards the legal liability of the defendant, but reversible because of the reception of irrelevant evidence tending to prejudice the jury and increase the amount of their verdict, and because compensation was allowed for a disability which does not in fact exist, the court may properly permit the plaintiff, at his election, to avoid a new trial by taking judgment for such sum as will, in the judgment of the court, do justice to the defendant.

15. In naming a sum for which plaintiff may take judgment in the circumstances above indicated, the right of the defendant to a jury trial is not invaded if the amount be placed as low as in all reasonable probability the jury found by their verdict, independent of the prejudicial elements. That is, the court in such a case should not undertake to say what sum of money will measure the plaintiff's loss, but what sum the jury said, by their verdict, stripped of its prejudicial elements and giving defendant the benefit of reasonable probabilities in respect to the amount of the recovery, will measure such loss.

Appeal from circuit court, Dane county; R. G. Siebecker, Judge.

Action by Frederick V. Baxter against the Chicago & Northwestern Railway Company. Judgment for plaintiff. Defendant appeals. Affirmed on conditions.

Bardeen and Dodge, JJ., dissenting.

Action by an employé of defendant to recover compensation for personal injuries received by him by the explosion of a locomotive engine, claimed to have been caused by defendant's keeping it in use with knowledge, or reasonable means of knowledge, that it was defective to a degree which rendered such an accident among the natural and reasonable probabilities, and one which, in the exercise of ordinary care, it should have apprehended.

On January 24, 1898, plaintiff was in the employ of defendant as a fireman on its locomotive engine No. 249, then located at its roundhouse at Madison, Wis. He had no knowledge but that the engine was safe or of any of the defects which resulted in its destruction and in his injuries. While he was in his proper place in the cab of the engine the engine boiler exploded, casting upon him steam, hot water and portions of the machinery and material of the engine, whereby he was scalded, one of his legs was broken in several places and crushed, he was badly bruised in and about his face and other portions of his body, and he received other injuries of a serious character. Such facts were all set forth in detail in the complaint, and it was alleged that defects in the boiler, which reasonable and proper inspection would have brought to defendant's knowledge, caused the explosion. The defects mainly pointed out in the complaint were, partial destruction of the boiler plates along the seams by the corrosive action of water, called “grooving,” thin places in the boiler plates caused by long use, and worn-out flues. Damages were claimed to the extent of $30,000. The answer put in issue all the allegations charging the defendant with actionable negligence, on the trial the evidence of defects was confined to grooving, to thin places in the boiler plates caused by the action of the water, called “pitting,” some slight evidence of lamination, being places in the plates where the primary plates were not perfectly welded together into a single plate, crystallization of the iron, and weak flues. The principal controversy as to the extent of the injuries plaintiff received was in respect to whether his spine and spinal cord were permanently injured. There was a special verdict, finding as facts that the locomotive boiler was defective from grooving and pitting, and not from lamination, and that such facts were discoverable before the accident by reasonableand proper tests which should have been applied by the defendant; that such defects caused the explosion of the boiler and were the proximate cause of plaintiff's injuries; that plaintiff's right leg and spinal cord were permanently injured and his damages were $11,500. There was the usual motion to set aside the verdict and grant a new trial. Judgment was rendered for plaintiff for the damages assessed by the jury and for costs.

Fish, Cary, Upham & Black and E. M. Hyzer, for appellant.

R. M. La Follette, A. R. Bushnell, and G. E. Roe, for respondent.

MARSHALL, J. (after stating the facts).

The chief controversy on the trial was as to whether the defective condition of the boiler, which caused the explosion, ought to have been discovered by the defendant before that event, and guarded against. To cover that field by the special verdict, defendant's attorneys requested the court to submit for answers these four questions: “Could the defects have been discovered without removing the flues from such boiler?” “Was it the...