Rysdorp v. George Pankratz Lumber Co.

NewmaN, J.

Two principal errors are claimed: (1) That the special verdict is insufficient to support the judgment; and' (2) that the evidence fails to establish defendant’s negligence.

The criticism on the verdict is that it fails to find that the unsafe condition of the mill was negligence, or that it *625 -caused plaintiff’s accident. It is elementary that, in order to make the defendant liable, the unsafe condition of the mill must be by fault of the defendant, and must have been the cause of the accident. Both these elements must be found as facts by,the proper trier of the issues of fact; if in doubt upon the evidence, by the jury, — ■ if not in doubt upon the evidence, then by the court. If the proper inference to be drawn from the undisputed facts is disputable, then the inference is to be drawn by the jury, and the court cannot supply the want of it. The verdict must find all the facts essential to the plaintiff’s right of recovery, and in his favor, or the plaintiff cannot have judgment upon it. It is •essential that the fault of the defendant shall have been such as, in the circumstances, to be negligence. It is found only that “ the machine was not safe to be used in the mill.” That does not necessarily establish that the use of it was negligence, as against the plaintiff. The finding is equivocal. Apparently its unsafety consisted in the danger that it would wreck the machine or mill. It cannot be said that the danger that some person would be injured by it was ■conspicuous. So this inference was to be drawn by the jury. If it were found that the use of the machine in its actual condition was negligence, the liability of the defendant is not yet established until it is further found that such negligence was the cause of the accident. Negligence is the cause of the accident, in a legal sense, only when it is of such a character as that men of ordinary prudence, judgment, and experience ought reasonably, in the light of the attending circumstances, to have foreseen that it was likely to produce such an accident. Klatt v. N. C. Foster L. Co. 92 Wis. 622 . Surely, the incidence of such an accident was not so plainly imminent as that the court can say, as matter of law, that the defendant was bound to foresee it.

The special verdict is insufficient to support the judgment. The verdict is, in some respects, incongruous. It finds that *626 the defendant could have learned of the defect in the machine by the exercise of ordinary care, but that the plaintiff could not. This really seems to apply one standard of care to the defendant, and another, and a more liberal one, to the plaintiff. It is argued that the fact that the jackscrew worked hard should have been sufficient notice to the defendant that the machine was out of order, but the same fact is not deemed to be sufficient notice to the plaintiff; while, in fact, the plaintiff is the only person about the mill who is shown to have been an expert in mill machinery, and, as might be supposed, the one most likely to apprehend the cause of the difficulty. lie also knew the purpose of the slot, that it was for room for the lever to travel up and down in, and for ño other purpose. He also knew the purpose of the manhole, that it was “ for getting in there in case you want to do any work in there.” He knew also that when his hand was through the manhole for any pul-póse no injury could happen to him by the falling of the sleeve. He knew, at the time, that he could, with entire safety, make the investigation which he wished of the condition of the weights and rod through the manhole. But he says he did not think of it. He knew the safe way which had been provided for the purpose, but, from want of thought, took a more convenient, but less safe, way. It certainly seems that when the defendant had provided a safe way, which was known to the plaintiff, it had done its full duty toward him, and that his choice of a different way was at his own risk. Welsh v. Argyle, 89 Wis. 649. His forgetfulness, or want of thought, was not the fault of the defendant, but rather his own misfortune. Certainly, the plaintiff must be held to have assumed the risk of all such dangers of the employment as he understood or could learn by the exercise of reasonable attention. The evidence fails to establish the defendant’s negligence.

By the Court.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.