Severson v. City of Beloit

• Decision Date: 06 May 1969
• Docket Number: No. 207,207
• Citation: 42 Wis.2d 559,167 N.W.2d 258
• Parties: Charles R. SEVERSON, Respondent, v. The CITY OF BELOIT et al., Appellants.
• Court: Wisconsin Supreme Court

Page 258

167 N.W.2d 258

42 Wis.2d 559

Charles R. SEVERSON, Respondent, v. The CITY OF BELOIT et al., Appellants.

No. 207.

Supreme Court of Wisconsin.

May 6, 1969.

Rehearing Denied June 27, 1969.

Roy E. Berg, Berg & Gage, Janesville, for City of Beloit.

Arnold J. Wightman, Hart, Wightman & Thurow, Madison, for School of Vocational and Adult Education.

Donald W. Kaatz, Madison, for respondent.

HEFFERNAN, Justice.

This court has uniformly held that the verdict of a jury will be sustained if there is any credible evidence which under a reasonable view will sustain it. Kinsman v. Panek (1968), 40 Wis.2d 408, 162 N.W.2d 27. In Ernst v. Greenwald (1967), 35 Wis.2d 763, 151 N.W.2d 706, this court concluded that a verdict would be set aside only if at least one of the three following factors appeared: (1) If, as a matter of law, the plaintiff's negligence equaled or exceeded that of the defendant; (2) if the percentages attributed to the parties are grossly disproportionate; or (3) if there was such failure of proof that the verdict was based upon speculation. It is the second factor which the defendants stress upon this appeal. In an admirable memorandum decision following the motions after verdict, the trial judge reviewed the record and pointed out the credible evidence upon which the jury might well have based their apportioment of 75 percent negligence to the defendants. He stated that there was evidence of inadequate advance instruction given to the plaintiff in setting up and operating the multi-speed grinder. He concluded from the evidence that the jury might well have determined that although a set of safety rules had been given to the plaintiff in 1961, further instructions were not distributed in 1962. He found that there was evidence of inadequate teacher supervision and of the instructor's failure to fully enforce the school's safety regulations. He also pointed out that the testimony was unequivocal that, even when the grinder was properly set up and in the mode prescribed, it was, nevertheless, dangerous because the drop cord ran to the grinder in an awkward manner that required the operator to reach directly over the grinder wheel in order to start its operation; and he emphasized that, although the instructor knew of the hazards of operating the machine without a guard, he failed to so advise the plaintiff.

The defendants on this appeal make much of the fact that the plaintiff was employed in industry, that he was not a child, and that he should have avoided hazards by following the instructions and complying with the safety regulations. While we cannot dispute the defendants' contention that such conduct would have tended to prevent the accident and the failure to observe precautions constituted negligence on the part of the plaintiff, nevertheless, the record does not establish the contention that the plaintiff was an experienced machinist. On the contrary, his industrial record, as presented in court, made it apparent that the flute-grinding operation he performed in his employment was a simple manual operation that required no skill or special knowledge in setting up the machine. His industrial work was very unlike what he was attempting to do in the classroom. He was attending the Vocational School because he did not know how to operate such a machine and wished to learn. Viewing the evidence from the point of view most favorable to the respondent, it supports the apportionment of negligence found by the jury. Additionally, the defendants argue that the trial judge erred in failing to find the plaintiff negligent as a matter of law prior to submitting the case to the jury. The trial judge in his memorandum points out that there was indeed evidence of an undisputed nature which would have enabled him to hold that the plaintiff was negligent as a matter of law. It was undisputed that the plaintiff did not, upon setting up the machine on the Tuesday evening of the accident, recheck the set-up to make sure that it conformed with instructions. Rather, he negligently assumed that his original set-up was correct and that it had not been changed in the several days' interval. However, the jury, as a matter of fact, found him negligent; and, as we have previously stated, the defendant is not prejudiced when the jury in its verdict subsequently makes the findings of negligence that the trial judge could have made prior to a submission of the case. Crowder v. Milwaukee & Suburban Transport Corp. (1968), 39 Wis.2d 499, 508, 509, 159 N.W.2d 723; Zeitlow v. Western Casualty & Surety Co. (1962), 17 Wis.2d 172, 176, 115 N.W.2d 758; Davis v. Skille (1961), 12 Wis.2d 482, 107 N.W.2d 458.

The defendants also argue that the court erred in failing to...