Campshure v. Standard Mfg. Co.

• Decision Date: 27 November 1908
• Citation: 118 N.W. 633,137 Wis. 155
• Parties: CAMPSHURE v. STANDARD MFG. CO.
• Court: Wisconsin Supreme Court

137 Wis. 155

118 N.W. 633

CAMPSHURE

v.STANDARD MFG. CO.

Supreme Court of Wisconsin.

Nov. 27, 1908.

Appeal from Circuit Court, Oconto County; Samuel D. Hastings, Judge.

Action by William Campshure against the Standard Manufacturing Company. From a judgment for defendant, plaintiff appeals. Affirmed.Classon & Frank, for appellant.

C. G. Cannon (C. B. Bird, of counsel), for respondent.

TIMLIN, J.

There was a special verdict by which the jury found the negligence of the defendant in permitting a saw to be used in its shop and factory without a guard or hood over it. This negligence caused the injury. It was then found that the plaintiff did not know, at the time of his injury, that there was danger of serious injury resulting to him from the use of the saw without a cover over it, but by the seventh question that the plaintiff ought, in the exercise of ordinary care, to have reasonably anticipated that there was danger of serious injury resulting to him from the use of the saw without a cover on it. At the same time, by the ninth question, the jury found that there was no want of ordinary care on the part of the plaintiff which contributed to his injury. Upon motion the circuit judge found the seventh question sufficient to charge the plaintiff with notice or knowledge of the danger, and therefore that plaintiff, by continuing to work with the saw, assumed this risk of his employment. On defendant's motion the court changed the answer to the ninth question from no to yes, and gave judgment on the verdict so changed, dismissing the complaint. He pointed out that in the charge to the jury he had separated the question of contributory negligence and assumption of risk, referring the latter to the sixth and seventh questions and the former to the ninth question. He, therefore, gave the answer to the seventh question a preponderating effect over the answer to the ninth question, and held there was a legal inconsistency between these answers, and therefore changed the answer to the ninth question, as stated. It is claimed by the appellant that the seventh question is really narrower than the circuit judge thought it, and that, properly construed, it relates merely to danger of getting in actual contact with the saw, and not to the danger of working around the saw in this condition, and therefore not inconsistent. We do not see how the language of this question above referred to can be so limited, and reject this construction.

The appellant's next point is that the court should have set aside the verdict as inconsistent, and granted a new trial instead of changing the answer to the ninth question, and on this point he cites Darcey v. Farmers' L. Co., 87 Wis. 245, 58 N. W. 382, and Deisenrieter v. Kraus-Merkel Co., 97 Wis. 279, 72 N. W. 735, in which this was done under somewhat similar circumstances, also Hazen v. West S. L. Co., 91 Wis. 208, 64 N. W. 857,Conroy v. Ry. Co., 96 Wis. 243, 70 N. W. 486, 38 L. R. A. 419,Wanzer v. Chippewa V. E. R. Co., 108 Wis. 319, 84 N. W. 423, and Fehrman v. Town of Pine River, 118 Wis. 150, 95 N. W. 105, which are not so similar as the first two mentioned, but nevertheless, in case of inconsistent findings, grant a new trial. Whether or not these findings are inconsistent in the case at bar depends on whether the contributory negligence negatived by the ninth finding necessarily included the assumption of risk affirmed by the seventh finding.

1. In decisions of this court assumption of risk by an employé has been, by slightly varying forms of expression, to a certain extent identified with contributory negligence. Beginning with the earliest case found, it was said in Nadau v. White River L. Co., 76 Wis. 120, 43 N. W. 1135, 20 Am. St. Rep. 29: “The assumption of an unusual risk in any employment by the employé is in the nature of negligence on his part, which, like any other contributory negligence, prevents his recovery.” In Hennesey v. C. & N. W. Ry. Co., 99 Wis. 109, 74 N. W. 554, it was said: “Assumption of the risk of unusual danger is a form of contributory negligence.” In Powell v. Ashland, I. & S. Co., 98 Wis. 35, 73 N. W. 573, it was said: “Assumption of risk, in the sense of those ordinary dangers incident to an employment as generally carried on, of course has nothing to do with contributory negligence, for, there being no negligence on the part of the employer as to such risks, obviously there can be no contributory negligence in the sense of concurring fault.” In other cases the word “unusual” was not used with reference to the dangers the risk of...