Monaghan v. Nw. Fuel Co.

• Decision Date: 29 October 1909
• Citation: 122 N.W. 1066,140 Wis. 457
• Parties: MONAGHAN v. NORTHWESTERN FUEL CO.
• Court: Wisconsin Supreme Court

140 Wis. 457

122 N.W. 1066

MONAGHAN

v.NORTHWESTERN FUEL CO.

Supreme Court of Wisconsin.

Oct. 26, 1909.

Dissenting Opinion Oct. 29, 1909.

Appeal from Circuit Court, Douglas County; A. J. Vinje, Judge.

Action by John J. Monaghan against the Northwestern Fuel Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Action to recover damages for a personal injury. Plaintiff was employed by defendant on its coal dock. Coal was elevated and screened at such dock, and the necessary power was furnished by electric motors. Plaintiff had been in charge of one of such motors for about 11 months before the injury. The motor was stopped and started by plaintiff on signal, and it was his duty to oil the machinery connected therewith, and keep it in running order. Power was delivered from said motor through a number of cogwheels in close proximity thereto. The motor stood about two feet above the platform leading to it. The machinery and motor appear to have been practically unapproachable on three sides. They could be approached by a platform on the fourth side, which platform was used by the operator in oiling the machinery. The gearings were in line with the platform. There was a railing, made of scantling, nearly three feet in height near the end of the platform, and in close proximity to the motor. There were boxes in the bearings for the purpose of oiling them. The gearing in which plaintiff was hurt was in the neighborhood of three feet from the top of the railing in a downward and westerly direction from such railing. It was necessary for plaintiff in oiling the bearings in question to lean over the railing, and, owing to the prevalence of coal dust, it appeared to be necessary for the oiler at times to bend over some distance so as to bring his eyes in close proximity to the oil cups to enable him to see them. While plaintiff was leaning over such railing, his sleeve was caught in one of the gearings, and he was dragged over the railing and into the machinery, and badly injured. The alleged negligence of the defendant consisted in its failure to cover the gearings in which plaintiff was hurt. The jury found (1) that the machinery in which plaintiff was injured was so located as to be dangerous to employés in the discharge of their duties; (2) that the defendant failed to have the machinery securely guarded or fenced; (3) that the failure to securely guard or fence was the proximate cause of plaintiff's injury; (4) that the plaintiff was not guilty of any want of ordinary care which contributed to produce his injury; (5) that the plaintiff sustained damages to the amount of $14,500 by reason of his injury. On such verdict judgment was rendered in favor of plaintiff.

Barnes, Marshall, and Dodge, JJ., dissenting in part.Solon L. Perrin (A. E. Boyesen and P. J. McLaughlin, of counsel), for appellant.

W. P. Crawford, for respondent.

BARNES, J. (after stating the facts as above).

The appellant assigns as error: (1) The refusal of the court to give certain instructions which were requested; (2) the charge of the court under the first question in the special verdict; (3) failure of the court to give any charge in relation to the second question in the special verdict; (4) giving an erroneous definition of proximate cause; (5) receiving incompetent testimony prejudicial to the defendant; (6) prejudicial and improper remarks made to the jury by plaintiff's counsel; (7) refusal of the court to direct a verdict in defendant's favor (a) because the gearing upon which plaintiff was injured was sufficiently guarded or fenced, and (b) because the plaintiff was guilty of contributory negligence; (8) refusal to set aside the verdict because the damages assessed were excessive.

1. No exception was taken to the refusal of the court to give the instructions requested; hence the rulings of the trial judge in this regard cannot be considered in this court.

2. By the first question in the special verdict the jury was asked: “Was the machinery in which plaintiff was injured so located as to be dangerous to employés in the discharge of their duties?” The court charged the jury: “In answering this question, you will consider, among other things, the location of the machinery in question with reference to where it became reasonably necessary for employés to be situated or placed in the discharge of their duties in and about it, and its situation and surroundings as shown by the evidence.” The criticism upon the charge is the use of the words “among other things”; it being urged that the instruction permitted the jury to consider matters outside of the evidence. In answering the question there were a number of things that the jury might very properly have considered aside from the specific ones mentioned by the court, as, for instance, the height of the railing, its proximity to the gearing, and the extent to which the vision was obscured by coal dust, as well as other items of evidence. Presumably the jury understood that the “other things” they might consider should be restricted to such things as were shown by the evidence. In the absence of a request to charge that extraneous matters should be excluded from consideration, we do not think any prejudicial error was committed if it be conceded that the language used was not as guarded as it might have been.

3. No request was made upon the court to give any charge in relation to the second question in the special verdict. In the absence of such request, no error resulted. Newton v. Whitney, 77 Wis. 515, 46 N. W. 882. Moreover, we do not find any exception in the record to raise this question.

4. The definition of “proximate cause” given by the court was taken verbatim from Deisenrieter v. Kraus-Merkel Malting Co., 97 Wis. 279, 288, 72 N. W. 735, which definition is approved in Feldschneider v. C., M. & St. P. Ry. Co., 122 Wis. 423, 431, 99 N. W. 1034, and in other cases, and it is undoubtedly one that is very generally given by trial courts. It is probable that counsel could improve on this definition, but it has been so often laid down for the guidance of trial courts, and they have been so frequently admonished to follow it, that it would hardly be consistent to hold that error resulted from so doing.

5. It is urged that the court erred in receiving testimony tending to show how other servants of the defendant oiled the machine prior to the plaintiff's employment, where they stood when oiling it, the condition of the light at the time of the injury, and the fact that the gearings were uncovered. It was competent for the plaintiff to show on the issue of contributory negligence any pertinent facts tending to establish ordinary care on his part. The fact that he oiled the machinery in the usual, customary, and ordinary way could best be established by showing how others had done the same work, and we think the testimony was not incompetent. Dr. Sarazin was permitted to testify under objection that, assuming the statement of the plaintiff to be true as to his condition, he thought there was dead bone in the ribs, and that an operation to remove the same would be necessary, and that such removal would weaken the side. It is urged that the doctor had made no sufficient examination, and had no sufficient information concerning the plaintiff's condition to qualify him to give the testimony complained of. The evidence was based on the statement made by the plaintiff on the witness stand as to his condition,and upon an examination made by the witness after the injury. The evidence was competent, even though it might not have been convincing. The weight to be accorded to it was for the jury to pass upon.

6. The plaintiff produced a model on the trial which the court refused to receive in evidence because it was not correct. In his argument to the jury plaintiff's counsel stated, in substance, that the reason why defendant did not produce a model was that, if one had been produced, it would have been more unfavorable to it than that made by plaintiff. Exception was taken to such remarks. The court charged the jury: “No inference adverse to the defendant should be drawn from the argument of plaintiff's counsel, except in so far as that argument is based on testimony.” In view of this instruction and of the nature of the remarks and the probable cause of their being made, no error resulted.

7. It is argued with much force that this court should say as a matter of law that the machinery in question was sufficiently fenced or guarded, and that, therefore, no negligence or breach of statutory duty was shown on the part of the defendant, and also that plaintiff was guilty of contributory negligence. These are the principal contentions relied on for a reversal of the judgment. Had the injury happened to some employé who had no duty to perform about the machinery in question, the argument that plaintiff had complied with its statutory duty to sufficiently fence or guard this machinery would be convincing. The barrier was nearly three feet high, and was substantial. But what might be a proper and sufficient safeguard for the ordinary employé might not be so for the plaintiff, who in the performance of his duties was obliged to lean over the barrier and bring his hands and other parts of his body in close proximity to rapidly revolving gearings. The plaintiff was as much entitled to have these gearings securely guarded or fenced for his safety as were other employés. Manifestly, a covering over the gearings in his case would perform a function which a mere fence or barrier would not. There was no attempt to show that it was impracticable to cover such gearings without seriously impairing the efficiency and use of the machinery, and we think the question of defendant's failure to sufficiently fence or guard the gearings in question under the facts of this case was fairly one for the jury to pass upon. If we eliminate from the defense of contributory negligence the fact that plainti...