Powell v. Ashland Iron & Steel Co.

• Decision Date: 10 December 1897
• Citation: 73 N.W. 573,98 Wis. 35
• Court: Wisconsin Supreme Court
• Parties: POWELL v. ASHLAND IRON & STEEL CO.

98 Wis. 35

73 N.W. 573

POWELL

v.ASHLAND IRON & STEEL CO.

Supreme Court of Wisconsin.

Dec. 10, 1897.

Appeal from circuit court, Waupaca county; Charles M. Webb, Judge.

Action by George Powell against the Ashland Iron & Steel Company. From a judgment for defendant, plaintiff appeals. Affirmed.

Action to recover damages for personal injuries. Plaintiff was a man 22 years of age, and of average intelligence so far as shown by the pleadings and evidence. He was in the employ of defendant in operating an iron-manufacturing plant. While so employed he stepped into the lower opening of an elevator shaft, or leaned into such opening, for the purpose of placing a workman's dinner pail on the elevator to send it to the top landing where such workman was employed. While in the act of so doing the elevator descended and struck him, causing the injury complained of. The jury rendered a special verdict, finding all the issues in plaintiff's favor, and assessing his damages at $3,000. The third finding was to the effect that plaintiff was not guilty of contributory negligence. The court, on motion of the defendant, changed such finding to one that plaintiff was guilty of such negligence, which was excepted to by the plaintiff. Judgment was thereupon rendered in defendant's favor of no cause of action, and the plaintiff appealed.Cate Sanborn and Lamoreux & Park, for appellant.

Tomkins & Merrill, for respondent.

MARSHALL, J. (after stating the facts).

The sole question on this appeal is, does the evidence conclusively show contributory negligence on plaintiff's part? Otherwise that branch of the case was exclusively for the jury, and the trial court erred in changing the finding in that regard and in rendering judgment for the defendant.

The general rule is too firmly established and well understood to require discussion here, to the effect that unless the proof of contributory negligence is so clear and decisive as to leave no room for unbiased and impartial minds to come to any other conclusion, or, as it is sometimes said, so clear and conclusive as not to admit, reasonably, of any opposing inference in unbiased and unprejudiced minds, the proper inference to be drawn must be determined by the jury. Duame v. Railway Co., 72 Wis. 523, 40 N. W. 394;Winstanley v. Railway Co., 72 Wis. 375, 39 N. W. 856;Steinhofel v. Railway Co., 92 Wis. 123, 65 N. W. 852;Seefeld v. Railway Co., 70 Wis. 216, 35 N. W. 278;Valin v. Railroad Co., 82 Wis. 1, 51 N. W. 1084;Langhoff v. Railway Co., 19 Wis. 489;Nelson v. Railway Co., 60 Wis. 320, 19 N. W. 52.

The learned circuit judge who presided at the trial, in deciding the question under consideration, undoubtedly had clearly in mind the familiar principle to which we have referred, and, testing the undisputed facts on the evidence by such rule, concluded that there could be but one reasonable inference therefrom; that such inference was unmistakable, and therefore that the question was one of law which it was his duty to decide; and he held accordingly. A decision thus rendered must be affirmed on appeal unless it clearly appears that it was erroneous. That weight, at least, should be given to decisions of trial judges, even on questions of the kind under consideration. It is the uniform rule that their determination of questions of fact cannot be disturbed unless against the clear preponderance of the evidence. The reasons for that rule do not apply as strongly to decisions as to whether the inferences to be drawn from undisputed facts are all one way, but the opportunities which a trial judge has for determining such questions are superior to those possessed by the appellate court, and on that ground are entitled to considerable weight, and, where the question is doubtful, to controlling weight.

In the light of the foregoing we have carefully considered the evidence in the record bearing on the question presented. It is undisputed that there were two elevator shafts side by side, reaching from about 10 inches below the level of the lower floor of the manufacturing plant to a height of about 65 feet; that there was an opening in each such shaft at the lower floor, about 9 by 10 feet; that the elevators were operated by steam power to carry charcoal and iron ore to the top of the furnace, where it was handled by workmen called “top-fillers”; that the elevators were operated in such a way that when one went up the other came down and when one was at the top of the shaft the other was in the pit with the platform at a level with the lower floor; that an ore crusher in the vicinity made so much noise as to render the working of the elevator machinery, ordinarily, not perceptible...