Guinard v. Knapp, Stout & Co.

• Decision Date: 16 March 1897
• Citation: 70 N.W. 671,95 Wis. 482
• Court: Wisconsin Supreme Court
• Parties: GUINARD v. KNAPP, STOUT & CO. COMPANY.

95 Wis. 482

70 N.W. 671

GUINARD

v.KNAPP, STOUT & CO. COMPANY.

Supreme Court of Wisconsin.

March 16, 1897.

Appeal from circuit court, Dunn county; John K. Parish, Judge.

Action by William H. Guinard against the Knapp, Stout & Co. Company to recover for personal injuries. From a judgment for plaintiff, defendant appeals. Reversed.

This case was once before this court, and is reported in 90 Wis. 123, and 62 N. W. 625. The report contains a general statement of the facts, which is sufficient, and need not be repeated. On the retrial the evidence is substantially the same as on the former trial. There is some difference in the details of the trial. There was a general verdict in favor of the plaintiff for $15,000. There was the usual motion to set the verdict aside, and for a new trial, which was denied, and the plaintiff had judgment on the verdict, from which the defendant appeals.V. W. James and G. M. Woodward, for appellant.

J. R. Matthews, T. F. Frawley, and C. T. Bundy, for respondent.

NEWMAN, J.

When the evidence was all in, the defendant moved for the direction of a verdict for the defendant, on the ground that the testimony was insufficient to establish the defendant's liability. The motion was denied; and the denial is alleged for error. On the former appeal, and on substantially the same testimony, this court considered the evidence sufficient to require the submission of the case to the jury. No reason is perceived why that decision is not to be deemed res adjudicata on this appeal. So it could be no error to deny the request.

The defendant also requested the court to instruct the jury that no statute law in this state required the defendant to cover or guard the set screw on which the plaintiff was caught. This, also, the court refused. Whether the statute requires such machinery to be covered or guarded depends upon whether it is “so located as to be dangerous to employés when engaged in their ordinary duties.” Sanb. & B. Ann. St. § 1636f, subsec. 2. That is a question of fact for the jury. It was not error to refuse the instruction.

There being evidence sufficient to take the case to the jury, the judgment must be sustained, unless it shall appear that in some important respect the case was not fairly tried and fairly submitted to the jury. The defendant requested 18 special instructions to be given to the jury, all of which were refused. The refusal to give these proposed instructions, and the giving of some which were given, are the principal grounds of error alleged. These proposed instructions seem to be, in the main, correct, as propositions of law, and applicable to the facts of the case. Those which were correct should have been given as asked, and without modification. Rev. St. § 2853. The refusal to so give them is error, unless they were substantially given in the general charge.

The action goes on negligence. The defendant was entitled to have the jury correctly instructed on the general principles of the doctrine of negligence, and upon the law as applied to the particular negligence claimed. The particular negligence claimed was the failure of the defendant to furnish the plaintiff a safe place in which to do his work. The place was claimed to be unsafe by reason of the proximity of uncovered machinery. The defendant was entitled to an instruction which should inform the jury of the extent and limit of the defendant's duty to the plaintiff in respect to the safety of the place where his work was to be performed, and the rule of negligence in relation to that situation. The defendant asked this instruction on that point: “The court instructs you that if the defendant furnished a place which was as safe and free from danger as other persons of ordinary care, prudence, and caution, and engaged in like business, and in like circumstances, ordinarily furnish, then your must find that the defendant furnished to the plaintiff a reasonably and ordinarily safe place to work.” This proposed instruction undeniably states the law of negligence as applicable to the duty of the master to furnish a safe place to work, and to the facts of the case, with substantial accuracy. It should have been given as asked. It was error to refuse it, unless it was substantially given in the general charge. It was in fact given in the general charge, in substantially the same language, but with the addition of a proviso or qualification which utterly perverts its force, and destroys its meaning, and leaves the jury utterly without a guide or standard by which to test the defendant's performance of the duty which it owed to the plaintiff. It gave correctly the general rule or definition of negligence as “a lack of ordinary care, or such care as men of ordinary care ordinarily use,” and that “neither party to this action was bound to use extraordinary care, such care as those use who are more careful, cautious, or prudent than the great mass of mankind ordinarily use.” But, as relating specifically to the duty of the defendant to furnish a reasonably safe place for the plaintiff to do his work in, the instruction was: “If the defendant furnished plaintiff a place which was as safe and free from danger as other persons of ordinary care engaged in like business and under like circumstances ordinarily furnish, then you will find for the defendant on such fact; but not if you find that places provided by such other employers of labor for their workmen or servants are not reasonably safe places in which their men are obliged to work. It is for you to say, from the whole evidence, whether such is the fact or not, as you, and not myself, are the judges of the fact.” No doubt the test of negligence is the presence or absence of that degree of care which ordinarily prudent persons are accustomed to observe about the same or...