Sachse v. Mayer

• Decision Date: 08 January 1963
• Citation: 118 N.W.2d 914,18 Wis.2d 457
• Parties: Frederick G. SACHSE, Appellant, v. Alex D. MAYER, Respondent.
• Court: Wisconsin Supreme Court

Page 914

118 N.W.2d 914

18 Wis.2d 457

Frederick G. SACHSE, Appellant, v. Alex D. MAYER, Respondent.

Supreme Court of Wisconsin.

Jan. 8, 1963.

Gerold & Huiras, Port Washington, Ralph E. Houseman, Grafton, for appellant.

Richard C. Bonner, Grafton, for respondent.

BROWN, Chief Justice.

Appellant submits that by the opinion in Sachse v. Mayer, supra, we determined that Mayer was causally negligent as a matter of law. We are unable to agree with appellant. In that case we held, only, that an issue was presented for determination by the trier of the fact, and such issue was whether Sachse might or might not reasonably understand that Mayer's order 'to clean out the woods' included the operation which Sachse was undertaking when he was hurt. By its verdict the jury found that Sachse might so understand it and, therefore, Sachse was injured in the course of his employment.

In our former opinion we expressly recognized that such a jury finding might raise other questions but we refrained from consideration of any of them. Our previous decision does not foreclose the parties in raising or in attempting to resolve the other issues so raised.

Those questions, as answered by the jury, resulted as follows: Mayer should have anticipated that Sachse might use the power saw when he was up a tree and Mayer was causally negligent in not warning Sachse against the danger of doing so. (The trial court changed this answer, stating that there was no evidence to support the causation part of the finding.)

The jury also found that Sachse was negligent in not telling Mayer that he planned to use the power saw while he was up in the tree but that such negligence was not causal, and that Sachse was not negligent in the manner in which he attempted to use the power saw. Thereby, the jury absolved Sachse of all causal negligence and attributed 100 percent thereof to Mayer.

On stipulation by the parties the trial court found $2,088 as the cost of the past medical services incurred by Sachse. The jury awarded $50,000 for pain, suffering and disability, and $10,000 for future medical and hospital expense. No proof was offered in support of the $10,000, as the learned trial court said in its memorandum decision.

The verdict contained a question on the assumption of risk by Sachse. We consider the safe-place statute, sec. 101.06, Stats., applies to the facts and circumstances of this accident, and assumption of risk is not properly in this case. That defense was abolished in safe-place cases by Rosholt v. Worden-Allen Co. (1913), 155 Wis. 168, 178, 144 N.W. 650; Mennetti v. West Side Businessmen's Ass'n (1945), 246 Wis. 586, 591, 18 N.W.2d 487. However, the inclusion of the question in the verdic did not prejudice the plaintiff because the jury answered that the risk was not assumed. Both question and answer are disregarded now.

Although appellant was protected by the safe-place law he still had the duty to exercise reasonable care for his own safety, and if he failed to do so he is guilty of contributory negligence. Filipiak v. Plombon (1962), 15 Wis.2d 484, 489, 113 N.W.2d 365. See Neitzke v. Kraft-Phenix Dairies, Inc. (1934), 214 Wis. 441, 448, 253 N.W. 579; Paluch v. Baldwin Plywood & Veneer Co. (1957), 1 Wis.2d 427, 435, 85 N.W.2d 373; Vogelsburg v. Mason & Hanger Co. (1947), 250 Wis. 242, 246, 26 N.W.2d 678. See also Klein v. Montgomery Ward & Co. (1953), 263 Wis. 317, 321, 57 N.W.2d 188; Gupton v. City of Wauwatosa (1960), 9 Wis.2d 217, 224a, 101 N.W.2d 104, 102 N.W.2d 401; and Deaton v. Unit Crane & Shovel Corp. (1953), 265 Wis. 349, 354, 61 N.W.2d 552.

The jury found that Sachse was not negligent in the manner in which he attempted to use the power saw. As a matter of law, the attempt to climb the tree while the saw was running and then to saw off the top of the tree, which required him to use both hands in guiding the saw into the cut until the saw was about two inches deep, during which he employed no safeguards against falling, was causal negligence to a very serious extent. It could well be found that Sachse's causal negligence contributed to the accident in excess of anything which the record will support to sustain the finding of causal negligence on the part of Mayer. Although the jury could, and did, find that Mayer's order 'to clean out the woods' could be construed as including this task by Sachse there was no direction to Sachse to employ so foolhardy a procedure in cleaning out the woods. The instruction to him was a general one and he had never before climbed trees in performance of his duties. The present interpretation and the present method used was the choice of Mr. Sachse.

We do not hold as a matter of law that the causal negligence of Sachse exceeded that of Mayer. We do hold that as a matter of law such negligence of Sachse existed to a very substantial degree. As a rule the comparison of causal negligence is a matter for the jury.

In the course of its memorandum decision the trial court wrote:

'* * * It is my impression that the answers of the jury are the result of prejudice and sympathy and that the jury did not consider the evidence or the instructions of the court, but answered the questions in the verdict solely because of sympathy for the plaintiff who without question sustained a severe injury, and that they took into consideration the fact that the defendant was an executive of a large corporation. My sympathy was also aroused because of the severity of the plaintiff's injuries, but sympathy of either the jury or the court may not control the outcome of this case. I fell very strongly that a review of all of the evidence will indicate that the jury did not fairly answer the questions in the verdict, and this is certainly pointed up by the damages as found by the jury as to pain, suffering and disability, but more especially the award of $10,000 for future medical and hospital expenses, which is not sustained by the record. If I had not made the determination to grant the defendant's motion after verdict, I would have ordered a new trial upon all of the...