Nelson v. A. H. Stange Co.

• Decision Date: 12 November 1909
• Citation: 140 Wis. 657,123 N.W. 152
• Parties: NELSON v. A. H. STANGE CO.
• Court: Wisconsin Supreme Court

140 Wis. 657

123 N.W. 152

NELSON

v.A. H. STANGE CO.

Supreme Court of Wisconsin.

Nov. 12, 1909.

Appeal from Circuit Court, Lincoln County; A. H. Reid, Judge.

Action by John Nelson against the A. H. Stange Company. Judgment for plaintiff, and defendant appeals. Affirmed.

See, also, 137 Wis. 309, 118 N. W. 1119.

Among other references upon the part of the appellant were the following: Oconto B. Co. v. Cayouette (Wis.) 120 N. W. 497;Wheeler v. Russell, 93 Wis. 135, 67 N. W. 43;Swedish, etc., Bank v. Koebernick, 136 Wis. 473, 117 N. W. 1020;Linden L. Co. v. Milwaukee E. R. & L. Co., 107 Wis. 493, 83 N. W. 851;Drake v. Scheunemann, 103 Wis. 458, 79 N. W. 749;Plano Mfg. Co. v. Rasey, 69 Wis. 246, 34 N. W. 85;Hixon v. Oneida Co., 82 Wis. 515, 52 N. W. 445;Supervisors v. Walbridge, 36 Wis. 643;Musbach v. Wisconsin Chair Co., 108 Wis. 57, 84 N. W. 36;Yazdzewski v. Barker, 131 Wis. 494, 111 N. W. 689, 120 Am. St. Rep. 1059;Larson v. Knapp-Stout Co., 98 Wis. 178, 73 N. W. 992;Holloway v. Johns-Manville Co., 135 Wis. 629, 116 N. W. 635;Gay v. Milwaukee E. R. & L. Co. (Wis.) 120 N. W. 283;Sherman v. Menominee R. L. Co., 77 Wis. 14, 45 N. W. 1079;Kreider v. Wisconsin River P. & P. Co., 110 Wis. 645, 86 N. W. 662;Olwell v. Skobis, 126 Wis. 308, 105 N. W. 777;Wysocki v. Wisconsin L. I. & C. Co., 121 Wis. 96, 98 N. W. 950.

Upon the part of the respondent were cited the following: Cameron v. Sullivan, 15 Wis. 510;Bonesteel v. Bonesteel, 30 Wis. 151;Maxwell v. Kennedy, 50 Wis. 645, 7 N. W. 657;Kayser v. Hartnett, 67 Wis. 250, 30 N. W. 363;Shafer v. Eau Claire, 105 Wis. 239, 81 N. W. 409.

Kreutzer, Bird, Rosenberry & Okoneski, for appellant.

T. J. Mathews and Humphrey Barton, for respondent.

TIMLIN, J.

In this action for personal injury to plaintiff caused by the alleged negligence of defendant the jury on January 10, 1907, returned a special verdict by which they found the defendant guilty of negligence which was the proximate cause of plaintiff's injury, and assessed plaintiff's damages at $5,000. But they further answered concerning the plaintiff's contributory negligence and assumption of risk as follows:

“Did the plaintiff know and appreciate, or in the exercise of ordinary care ought he to have known and appreciated at the time when defendant put him to work with said ripsaw, the dangers incident to working with said ripsaw? Answer: Yes.

Did the plaintiff know, or should he have known in the exercise of ordinary care at the time of his injury, that slivers were liable to be thrown toward him by said ripsaw? Answer: Yes.

Ought the plaintiff in the exercise of ordinary care to have reasonably anticipated such an injury as occurred to him at the time and place of the injury to him? Answer: Yes.”

On motion the judge of the superior court in which this action was tried set aside this verdict, and granted a new trial. In his opinion on the motion he stated that there was no question in the special verdict submitting the material issue whether the plaintiff was guilty of negligence which contributed to cause his injury. But the order awarding a new trial is stated to be “on the ground that said verdict is against the law, in that no question was submitted to the jury in said verdict covering the material issue of fact whether or not the negligence of the plaintiff, if any there was, contributed proximately to his injury, and because said verdict does not cover all the material controverted issues of fact in the case, and for the further reason that the court is not satisfied with the conduct of the trial and the instructions as a whole in submitting the case to the jury.” The defendant filed an exception to this order, but thereafter joined in a stipulation setting the cause down for trial on August 27, 1907, another stipulation setting the cause for trial on September 3, 1907. The cause was then tried for the second time in the superior court, and that court directed a verdict for defendant. On motion of the plaintiff that court thereafter set aside the directed verdict and granted a new trial. The defendant appealed to this court from this second order granting a new trial, and the order was affirmed in 137 Wis. 309, 118 N. W. 1119. After the cause was remanded from this court, the defendant filed an affidavit of prejudice against the judge of the superior court, and thereupon the parties joined in a stipulation that the present attorneys for appellant be substituted as attorneys, and that the place of trial of the action be changed to the circuit court for Lincoln county, and upon such stipulation the superior court ordered this change on February 17, 1909, and also made an order substituting for defendant's attorneys the present attorneys for appellant. In the circuit court the cause was tried for the third time, and the jury returned a special verdict in which they found the defendant negligent in three particulars: (1) In failing to provide a splitter for the ripsaw in question; (2) in failing to have said ripsaw guarded with a cover; (3) in failing to warn and instruct the plaintiff concerning the danger to which he was subjected in operating the ripsaw. The fourth question of the special verdict and the answer thereunto were: “If you answer any or all of the first three questions, ‘Yes,’ then was such negligence the proximate cause of plaintiff's injury? Answer: Yes.” The plaintiff was acquitted of assumption of risk and contributory negligence, and his damages fixed at $6,200. On April 22, 1909, the defendant proposed a bill of exceptions relative to the first trial of the action. This bill of exceptions last mentioned was settled by Judge Helms of the superior court on May 10, 1909, after the last verdict in the circuit court. Defendant then moved before the circuit judge on the record in the action and on such bill of exceptions to vacate and set aside the order of Judge Helms of March 29, 1907, which order set aside the first verdict of January 10, 1907, and to reinstate such verdict and for judgment for the defendantthereon; also for judgment in defendant's favor on the undisputed evidence on the last trial notwithstanding the last verdict, to change certain answers in the last verdict, and, finally, for a new trial for errors occurring during the last trial and because of excessive damages. These motions were all denied, and on motion of the plaintiff the bill of exceptions settled by Judge Helms was stricken from the files and judgment granted the plaintiff on the last verdict on condition he remit $1,000 from the amount of the verdict, which was done, whereupon judgment was rendered for the plaintiff.

Errors are assigned in striking the bill of exceptions of the first trial from the record, and in refusing to vacate Judge Helms' order of March 29, 1907, and in refusing to reinstate the first verdict and grant judgment for the defendant thereon; in denying defendant's motion for judgment notwithstanding the verdict in the last trial, and in refusing to change the answers to certain questions in the last verdict; in not including in the last special verdict certain questions requested by defendant; in receiving evidence; in rendering judgment excessive in amount.

The judge of the superior court might properly have entered judgment for the defendant upon the first verdict. Campshure v. Standard Mfg. Co., 137 Wis. 155, 118 N. W. 633;Monte v. Paper Mills Co., 132 Wis. 205, 111 N. W. 1114;Coolidge v. Hallauer, 126 Wis. 244, 105 N. W. 568;Meyer v. Milwaukee, etc., Co., 116 Wis. 336, 93 N. W. 6;Helmke v. Thilmany, 107 Wis. 216, 83 N. W. 360. But he did not do so, and, although his written opinion upon motion to set aside that verdict indicates that he considered the verdict insufficient, yet in his order setting it aside he does so expressly upon the ground that a material issue of fact covering the contributory negligence of the plaintiff was not submitted to the jury, and for the further reason that he was not satisfied with the conduct of the trial and the instructions as a whole in submitting the case to the jury. This order followed the opinion, and represents the later more authentic and official evidence of the grounds upon which the verdict was set aside. The defendant neglected to appeal from this order granting a new trial, but appealed to this court from a like order made by the superior court at the end of the second...