Ruck v. Milwaukee Brewery Co.

• Decision Date: 04 March 1912
• Citation: 134 N.W. 914,148 Wis. 222
• Parties: RUCK v. MILWAUKEE BREWERY CO.
• Court: Wisconsin Supreme Court

148 Wis. 222

134 N.W. 914

RUCK

v.MILWAUKEE BREWERY CO.

Supreme Court of Wisconsin.

Feb. 20, 1912.

Dissenting Opinion March 4, 1912.

Appeal from Circuit Court, Milwaukee County; W. J. Turner, Judge.

Action by John Ruck, a minor, by Peter Ruck, his guardian ad litem, against the Milwaukee Brewery Company. From a judgment for plaintiff, defendant appeals. Affirmed.

The plaintiff, 16 years and nearly 5 months of age, on July 3, 1907, while employed in the bottling department of the brewery of the defendant, received an injury by being struck in the eye by a piece of glass from an exploding bottle. The injury resulted in the loss of the eye. A statement of the findings of the jury upon this trial, in addition to the statement of facts contained in the report of the case on a former appeal (144 Wis. 404, 129 N. W. 414), is all that is necessary to fully present the facts of the case.

The jury found that the plaintiff was directed by the foreman to assist in piling out bottles of beer from the steam tank to the trays in which they were carried to the labeling machine; that there was a latent danger that the bottles, after being taken from the steam tanks and set upon the trays, would explode while they were standing still, without the application of any external force to the bottles; that the defendant had knowledge prior to the time of injury of the latent danger; that the defendant negligently failed to warn the plaintiff of the latent danger, and that such negligence was the proximate cause of the injury; that the plaintiff did not in the exercise of ordinary care know of the danger; that the explosion which caused the injury was not produced by the bottles being struck together by reason of the manner in which the plaintiff performed his work; that the defendant was not guilty of negligence in furnishing the plaintiff with a tray constructed as was the one used by him; and that no failure on the part of the plaintiff to exercise ordinary care contributed in any degree to produce his injury. The jury also agreed upon $7,000 as the sum which would reasonably compensate the plaintiff for his injuries. This is an appeal from the judgment on the verdict.

Marshall and Vinje, JJ., dissenting.

Doe & Ballhorn, for appellant.

Glicksman, Gold & Corrigan, for respondent.

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

The former decision in this case on appeal to this court declared the rules applicable to the facts at issue between the parties, and must control in the determination of the questions presented.

The verdict is assailed upon the ground that the evidence does not sustain the findings of the jury. In substance, we find the state of the evidence not unlike that on the former appeal, wherein it was held that it presented a jury question. 144 Wis. 404, 129 N. W. 414. The contention is, however, made that the evidence of plaintiff and of the witnesses who testified on the subject of the alleged danger from the explosions of bottles after being placed on the tray at rest and protected from external force, and on the subject of defendant's want of care as to knowing of such danger and warning employés thereof, differs from the facts on the former trial, in that it is so unreasonable, contradictory, and unreliable that it furnishes no basis for any inferences to be drawn by the jury. The argument is made that the contradictions in this evidence are so manifold and the other forms of its impeachment are so destructive of its probative force that the former holding of its sufficiency cannot control. This position is not tenable.

[1] The weight of the evidence adduced and the effect of the alleged contradictions and impeachments are matters peculiarly within the province and functions of a jury and their duties in this regard cannot be assumed as questions of law by the court.

It is urged that the court erred in rejecting 21 of the 23 questions submitted by the defendant as part of the special verdict. The special verdict submitted by the court is correct. It embraces the questions of ultimate issuable facts presented by the pleadings and the evidence, and the findings in response thereto by the jury establish a complete cause of action and good ground for a judgment determining the rights of the parties as litigated upon the trial.

It is, however, claimed that the defendant was prejudiced by the rejection of these questions because they pertain to issues of fact raised by the pleadings and concerning which evidence had been adduced. In so far as these proposed questions cover inquiries that are not part of the issues embraced in the verdict actually rendered, it cannot be prejudicial, because, in effect, the court's rejection thereof constitutes a ruling that the evidence material thereto was insufficient to sustain any claim of the plaintiff and hence is a ruling in appellant's favor. Do any of the rejected questions form part of the issues embraced in the verdict rendered which are not properly included and passed upon by the verdict of the jury? From a study and examination of the requested questions, we find that the only special issue of fact calling for submission in connection with the ultimate issues embraced in the verdict was an inquiry as to whether or not the explosion and consequent injury to the plaintiff was caused by the bottles being struck together through the plaintiff's manner of performing his work, and this the court submitted by question 8 of the verdict. We find no error in the rejection of the questions proposed.

Exceptions are taken to certain sentences and portions of sentences of the instructions to the jury. We have examined them, and find they were correct, and that they contained nothing misleading when interpreted in connection with the other parts of the charge and the questions in the verdict to which they were directed.

[2] Immediately after the jury retired, the court recalled them to the courtroom at the request of the plaintiff's counsel, and stated that, upon the request of plaintiff's counsel, he would instruct them as to the burden of proof in the case, and proceeded to do so. It is urged that this was a prejudicial proceeding. The statement by the court that he recalled the jury at the request of plaintiff's counsel, after having refused in their presence to instruct as requested by defendant's counsel, cannot be said to have operated prejudicially upon the jury under the circumstances. Recalling the jury was a plain duty of the court, and we discover nothing improper in the court's manner of performing it.

Nor do we discover anything prejudicially erroneous in the court's charge defining negligence, or in the statements of the claims of the respective parties under the evidence. The instructions given fully covered the questions in the verdict, were correct, and contained the material and essential parts of the rejected requests to instruct.

A number of detailed exceptions to rulings on evidence are urged upon us as erroneous, because several witnesses were permitted to testify on redirect examination on the matter in their examinations on the former trial, and because the court improperly permitted cross-examination of the defendant's witnesses on matters not touched upon in their direct examination. The points referred to in these examinations were relevant and material to the questions litigated, and the evidence adduced was competent. We find nothing to show that the court unduly extended the scope of the inquiries or the privilege of cross-examination to such an extent as to elicit facts not covered in direct examination.

[3] The award of damages is assailed as excessive. It appears that plaintiff's eye had to be removed. The plaintiff testifies that he suffered considerable pain from the treatment and operation; that he is unable to wear an artificial eye; that the afflicted side of his face is somewhat diminished in size and exhibits the disfigurement resulting from the vacant eye socket; that he has pains in this region of his face; and that the sight of the other eye is not as good as before the injury. The fact that plaintiff is young in years makes the injury and damage greater than if it had occurred to him in a later period of his life. True, as appellant claims, this court limited the recovery in the Olwell Case, 126 Wis. 308, 105 N. W. 777, for the loss of an eye to $6,000, yet it cannot be held that such a sum is to be regarded as the maximum amount for injuries of this nature.

[4] In the very nature of things the amount which will compensate a person for an injury which must attend him through life cannot be measured by strict and definite rules and must be left largely to the sound judgment of a jury and the trial judge. Another case illustrative of this subject is the case of Coolidge v. Hallauer, 126 Wis. 244, 105 N. W. 568, wherein the jury awarded $7,000 to an operator of a button machine, 28 years of age, as compensation for the loss of an eye. Though exception had been taken to the amount as excessive, it was not urged that it was excessive upon appeal to this court, and we must conclude that the parties did not regard this amount as excessive for such an injury. The trial court in this case approved the award of the jury as reasonable and just. We do not consider that this court should as matter of law hold the amount awarded to be unreasonable and excessive.

Judgment affirmed.

MARSHALL, J. (dissenting).

Duty, it seems, calls me to dissent as to the damages. I would not do so on any unsubstantial ground or where, to my view, the matter was doubtful. With due respect, I trust, for the opinions of others, here the error seems clear; the approved recovery to violate precedent, violate the logic of legal damages in such cases, violate legislative policy in general, and be detrimental to public welfare.

My judgment is not better than that of any of my Brethren, but no judge can be truly loyal to duty without standing by firm convictions...