Schultz v. C., M. & St. P.R. Co.

• Decision Date: 03 February 1880
• Citation: 4 N.W. 399,48 Wis. 375
• Parties: SCHULTZ v. THE C., M. & ST. P. R. CO.
• Court: Wisconsin Supreme Court

48 Wis. 375

4 N.W. 399

SCHULTZ

v.THE C., M. & ST. P. R. CO.

Supreme Court of Wisconsin.

Filed February 3, 1880.

Appeal from Crawford circuit court.

This case was here on a former appeal, and the statement of it, which will be found in 40 Wis. 589, will not be repeated here. On that appeal a judgment for the plaintiff was reversed because the question whether he was in the service of the defendant company when injured or of John Lawler, was not submitted to the jury.

On the retrial of the action the testimony was very similar to that introduced on the first trial, with the exceptions that plaintiff testified he made no contract with Mr. Lawler; that he considered himself in the service of the company and should have looked to the company for his wages had not Lawler paid him; and that although his name was on Lawler's pay-roll, he received nothing from him for his work on the bridge until after he was injured. Lawler testified that he made no contract with the men operating the pile-driver, but with the company only, and that he paid the men directly instead of paying the company for their services, because by so doing they received their wages a month earlier. Mr. Bennett, the head carpenter of the company, who had control of Mr. Loomis, the foreman, testified that the crew of the piledriver were not discharged; only turned over to Mr. Lawler to do some work.

It also appeared that the men employed on the pile-driver, including the plaintiff, were hired by Loomis, the foreman in charge of it, and that he had power to discharge them. The evidence tends to prove that Loomis knew the pile-driver was out of repair and in a dangerous condition in time to have had it repaired before plaintiff was injured.

At the close of the testimony counsel for defendant requested the court “to direct the jury to find a special verdict in this case.” Whereupon the court submitted to the jury the question: “Was the plaintiff in the employ of the defendant at the time of the injury?” The court also charged the jury, among other things, as follows: “You will answer this question by writing under it, yes or no. If you write and find no, you will say: We, the jury, find for the defendant. If you write yes, you will then inquire whether the defendant was in fault; if you find that defendant was not in fault, you will find for the defendant. If you find that the plaintiff was negligent and in fault, you will find for the defendant. If you find that the defendant was in fault, because of not using ordinary care and diligence in keeping in repair its machinery, and the plaintiff was not in fault, you will find for the plaintiff such damages as you think, from the proof, that he has sustained; provided, you answer that you think plaintiff was in the employment of the defendant. If the plaintiff was in the employ of John Lawler, the defendant is not liable for the injury complained of by plaintiff.” Defendant's counsel excepted to the special question propounded to the jury, and, generally, to that portion of the charge above quoted, save the last sentence thereof. The jury returned an affirmative answer to the special question, and a general verdict for the plaintiff, assessing his damages at $4,500.

A motion for a new trial was made on behalf of the defendant, and the record discloses the following proceedings upon the motion:

“The said court did orally state that it would overrule the said motion to set aside the said verdict and for a new trial, and did further determine that the amount of the verdict of the jury herein was excessive; and the said court would sign judgment herein upon the following conditions only, to-wit: That the plaintiff, in ten days from the time of signing judgment herein, file, in the office of the clerk of this court, a stipulation to the effect that in case the defendant shall within sixty days from the time of signing said judgment pay to the plaintiff the sum of $3000, together with the costs in this action, said plaintiff would satisfy said judgment in full.”

The required stipulation was filed, and judgment was thereupon entered for the plaintiff for the full amount of the damages assessed by the jury, and for costs. The defendant failed to comply with the conditions of such oral order and the stipulation filed pursuant thereto, and has appealed from the judgment.

Hazelton & Provis, for respondent.

John W. Cary and Thomas & Fuller, for appellant.

LYON, J.

We think there is sufficient evidence in the case to support findings by the jury that the plaintiff was in the service of the defendant company when injured; that the piledriver was in a dangerous condition at that time and had been so to the knowledge of Loomis, the foreman, long enough for him to have had it repaired before the accident; and that that the plaintiff was not guilty of any negligence contributing to cause the injury.

The evidence upon all of these propositions is conflicting, and it was peculiarly the province of the jury to determine as to each which way it preponderated. In returning a general verdict for the plaintiff the jury necessarily found such propositions proved. Because there is evidence to support them, so far as the judgment rests upon them we cannot disturb it for want of proof.

This brings us to consider the various rulings and proceedings upon which error is assigned:

1. A special verdict was demanded at the proper time on behalf of the defendant. Regularly, it thereupon became the duty of the court to submit to the jury questions of fact in writing, covering all of the material issues in the case upon which there was any conflict of evidence. Rev. St. 760, § 2858; Hutchinson v. Ry. Co. 41 Wis. 541. The court thus submitted a single question, to-wit, whether the plaintiff, when injured, was in the service of defendant, and failed to submit specially other material controverted questions of fact in issue in the case.

Counsel for defendant objected generally to the question submitted, and to a portion of the charge of the court. But no specific objection was made or exception taken to the failure of the court to submit questions covering all of the issues. The court attempted to comply with the statute. The objection only informed the court that counsel thought the question submitted an improper one. No suggestion was made that counsel thought or desired that other questions should be submitted. All other issues were in fact submitted to the jury in the general charge, and we are unable to discover any erroneous statement of the law therein.

It seems to us that under such circumstances it was the duty of counsel then and there to make the specific objection that the question submitted was not the only one in issue, and that they desired a special submission of other issues. Failing to do so, but standing by during the whole proceeding without objection or exception reaching to the irregularity, we think, and so hold, that they waived the irregularity, and cannot afterwards be heard to complain of it. Any other rule would or might render the statute giving the right to a special verdict an instrument of wrong and injustice.

2. The plaintiff received the injuries of which he complains before the enactment of chapter 173, Laws of 1875,...