Dugal v. City of Chippewa Falls

• Decision Date: 10 January 1899
• Citation: 77 N.W. 878,101 Wis. 533
• Parties: DUGAL v. CITY OF CHIPPEWA FALLS.
• Court: Wisconsin Supreme Court

101 Wis. 533

77 N.W. 878

DUGAL

v.CITY OF CHIPPEWA FALLS.

Supreme Court of Wisconsin.

Jan. 10, 1899.

Appeal from circuit court, Chippewa county; A. J. Vinje, Judge.

Action by Annie Dugal, as administratrix, against the city of Chippewa Falls. Judgment for plaintiff, and defendant appeals. Reversed.

The plaintiff's intestate was killed by the falling on him of a heavy stick of timber, which was being fastened in place under an existing bridge by deceased and another employé of the city. Ten similar operations had been performed in the course of the work, and plaintiff had been employed for about two weeks as a common laborer; but the evidence is conflicting as to the extent to which he had been connected with the previous operations, so as to have knowledge of their character and perils. In the operation, the beam in question rested unsecured upon two iron plates, preparatory to being bolted to another beam. It was claimed by plaintiff that necessary and reasonable care to provide against its falling off required that the beams should be fastened together either by clamps or chains,--a precaution which had not been taken with reference to any of the preceding ones. It was also claimed that the particular iron plates upon which this beam rested were unusually short, and tipped downward, so as to render the peril of this particular beam slipping or tipping off greater than usual. There was a conflict of evidence as to decedent's knowledge and means of knowledge of these facts. Deceased was ordered to assist in the work at a time when it is claimed it was too dark for him to see the peril. By consent of the parties, five questions were submitted to the jury as a special verdict, which, with their answers, were as follows: “Question No. 1: Was defendant guilty of a want of ordinary care in putting in place the needle beams in question without using clamps or chains or other means for holding such beams in position on the plates while they were being so put in place? Answer: Yes. Question No. 2: If you answer question number one in the affirmative, then was such want of ordinary care the proximate cause of the death of plaintiff's intestate? Answer: Yes. Question No. 3: Did plaintiff's intestate, Joseph Dugal, know of the manner in which the work was conducted on the part of the defendant, and the position and condition of the beam and plates in question, and apprehend the dangers resulting therefrom? Answer: No. Question No. 4: Was plaintiff's intestate, Joseph Dugal, guilty of any want of ordinary care that contributed to his death? Answer: No. Question No. 5: What sum of money will compensate plaintiff for the damage she has sustained by reason of the death of her husband? Answer: $4,000.” Defendant moved to set aside such verdict, and each of the special findings thereof, and to grant a new trial. Judgment was entered in favor of the plaintiff, from which this appeal is taken.

W. M. Bowe and James J. Lunney, for appellant.

F. F. Frawley, for respondent.

DODGE, J. (after stating the facts).

Special objection is made to question No. 3 and its answer. That question, it is apparent, is compound. Three different questions are incorporated in it, and are connected, not by the disjunctive, but by the word “and.” In order to answer the question “Yes,” it would be necessary for the jury to be satisfied of all three, namely: That Dugal knew of the manner in which the work was conducted on the part of the defendant; secondly, that he knew the position and condition of the beam and plates in question; and, thirdly, apprehended the dangers resulting therefrom. If the jury had not been satisfied that he knew all three of these things, they must have answered the question “No.” They may have been satisfied that he knew the manner in which the work was conducted, and the position and condition of the beams and plates in question, but were not satisfied that he apprehended the dangers resulting...