Van de Bogart v. Marinette & Menominee Paper Co.

SiebegkeR, J.

It is urged that plaintiff assumed the risk •of the negligence of which she complains as the cause of her injury. If she knew, or under the circumstances ought to have known, the danger of which she now complains as negli.gence, then she assumed the risk and cannot recover. There is no dispute but that she was in the proper place for the per- *109 formau.ee of ber duty at tbe time of tbe accident. Sbe bad but little general knowledge of maebinery and sbe did not understand tbe relation of one part to tbe others. Sbe bad no-special knowledge of tbe construction and operation of the machine in question aside from a general impression that she-gathered while observing it in operation. It appears that sbe did not know that set-screws were used to fastened tbe slitters-to tbe revolving shaft. So far as tbe record shows, these set- ■ screws could not be seen when tbe shaft was in motion, and. plaintiff did not see tbe shaft and the attachments except when in operation. It is claimed that tbe warning given ber of the-danger of injury to ber fingers from tbe knives and of getting' ber band caught in tbe slitters was sufficient to apprise ber of tbe danger from tbe set-screws bolding tbe slitters in position on the shaft. It is not apparent bow such a warning could, lead ber to know of ibe existence of tbe set-screws,.or of tbe danger of coming in contact with them. Knowledge of tbe liability of injury to ber bands by contact with tbe knives or slitters in removing tbe paper shavings from them, and an appreciation of the risk arising from tbe use of these set-screws,, are widely different things, and any information imputable-to ber as to tbe former furnishes no ground for bolding that this would naturally have informed ber of the danger incident-to tbe latter.

It is also contended that tbe court erred in submitting tbe question of plaintiff’s contributory negligence, and whether or-not, in view of ber age, intelligence, discretion, and judgment,, sbe ought in tbe exercise of ordinary care to have discovered and understood tbe dangers to which sbe was exposed. Knowledge of all obvious dangers is imputed to an adult servant and' be assumes all risks incident to them. Tbe same rule applies to minors in so far as their age, intelligence, discretion, and' judgment enables them to comprehend and appreciate these obvious dangers. We think tbe court held correctly in sub* mitting these questions to tbe jury upon tbe facts and circum *110 •stances shown by the evidence. It did not appear that she in fact knew of tbe danger, and it cannot be said as a matter of law that in view of her age, intelligence, experience, discretion, and judgment sbe ought to have discovered and understood it. Chopin v. Badger P. Co. 83 Wis. 192 , 53 N. W. 452 ; Luebke v. Berlin M. Works, 88 Wis. 442 , 60 N. W. 711 ; Benne v. U. S. L. Co. 107 Wis. 305 , 83 N. W. 473 ; Thompson v. Edward P. Allis Co. 89 Wis. 523 , 62 N. W. 527 .

It is claimed that the question of proximate cause is not covered by the verdict or by the court’s instructions to the jury. The jury by the special verdict found that the defendant was negligent in using the set-screw on the machine at the place and in the manner it did, and that it thereby rendered •the plaintiff’s working place unsafe; that plaintiff’s hair naught on this set-screw while she was engaged in the performance of her duty and that it thereby caused her injury; and that a man of ordinary intelligence and prudence should reasonably have anticipated that the presence of the set-screw, would cause some injury to employees working about the machine. Taking these facts as so found, it appears that the injury was actually caused by defendant’s negligence; that it was the natural and probable result of it; and that defendant as a person of ordinary intelligence and prudence ought, in the light of attending circumstances, to have foreseen that it would probably cause some one injury. This sufficiently covers all the essential elements of proximate cause, and the court was not required to give further explanation than it did in submitting the question of proximate cause to the jury.

It is contended that the court gave the jury general instructions on questions of ultimate fact and thereby transgressed the rule requiring that instructions be confined to an explanation of the questions of the special verdict, without informing the jury of the legal effect of their answers to- the questions. It is averred that the instructions plainly informed them of the legal effect of their findings on negligence, contributory *111 negligence, and assumption of risk. An examination of tbe charge shows that this claim is well founded. Before giving instructions on the- special verdict on different aspects of the case, the court charged the jury generally concerning the nature and theory of plaintiff’s case, and the classes of facts they would need to consider in negligence cases, and then stated what he intimates had been communicated to them by counsel:

“If this injury was the result of a pure accident for which nobody was to blame, of course the defendant is not liable, and the plaintiff has no right to recover anything from them. . . . In other words, there can be no liability on the part of anybody resulting from a pure accident. It requires something-else in order to create a liability.”

This certainly was plainly information to the jury that if they found defendant was not negligent in causing the accident no liability would result, and that to make defendant liable they must find negligence on its part. Another instruction informed them generally as to the duty of the master to furnish a safe place for his servants to perform their duties. This was not required to inform them of what constituted a reasonably safe place and manifestly apprised them of the legal effect of a finding that the master had failed in his duty in this respect. Again, in connection with the question of the verdict as to whether plaintiff was injured by her hair catching on the set-screw, the jury was told, “The plaintiff bases her case upon the proposition that she was injured in that way,” which is saying in effect that, if the jury found that she was not so injured, then she had failed to show the grounds necessary to entitle her to recover. This instruction was in effect repeated in submitting question No. 2 of the verdict, in a like prejudicial way. The court gave a number of quite lengthy, instructions upon question 8, involving the question of negligence in respect to the set-screw, in which the employer’s duty under the statutes (sec. 1636;, Stats. 1898) to ■guard and securely protect shafting that may be dangerous to employees was repeatedly adverted to and explained to'the *112 jury in different ways. Tbey plainly informed tbe jury tbat no liability would follow if defendant was found free from negligence in this respect. 'These instances suffice to show that the general instructions given were clearly prejudicial to the defendant’s statutory rights to have the cause determined by a special verdict, “entirely uninfluenced by any thought as. to the final result to be reached by any application of the law to the facts.” The practice of giving instructions which impart such information has been considered so often that we cannot hope to add anything further by way of explanation or condemnation. Among the many cases on the subject we call attention to those collected in Lyon v. Grand Rapids, 121 Wis. 609 , 99 N. W. 311 . An invasion of this right of the parties to litigation operates to deprive them of a valuable statutory right, and as*stated in Garrard v. La Crosse City R. Co. 113 Wis. 258 , 89 N. W. 125 , in speaking of the effect of giving such instructions: “Nor this reason there must be a reversal of the judgment, irrespective of any other question.” Musbach v. Wis. C. Co. 108 Wis. 57 , 84 N. W. 36 .

Another objection to the charge was that abstract propositions were given on questions submitted to the jury without adequately covering the issues by instructions applicable to the facts. Since the instructions given were not erroneous, and since no written requests were made for instructions on these subjects, no valid exception can be urged on this ground. Hacker v. Heiney, 111 Wis. 313 , 87 N. W. 249 ; Schroeder v. Wis. Cent. R. Co. 117 Wis. 33 , 93 N. W. 837 ; Cupps v. State, 120 Wis. 504 , 97 N. W. 210 , 98 N. W. 546 ; Taylor v. Seil, 120 Wis. 32 , 97 N. W. 498 .

The exceptions urged to the admission of evidence over defendant’s objection are without prejudice. The evidence was material and relevant to the issues being litigated and was properly submitted to the jury.

The amount of damages awarded by the jury is assailed as *113 grossly excessive under tbe facts established by tbe evidence. It is contended tbat tbe evidence fails, as claimed by plaintiff, to show permanent lesions caused by tbe injury. There is evidence tending to show tbat she has suffered pain and is now .subject to attacks of sickness as a result of tbe injury, and evidence tending in some degree to support a probability tbat these conditions may be permanent. Tbe direct as well as tbe opinion evidence on these questions is uncertain and does not furnish a clear and substantial basis for an inference tbat these afflictions all resulted from tbe injury, and it falls short of .that reasonable certainty necessary to show tbat they are tbe permanent results of lesions caused by tbe injury. Since a new trial must be awarded wherein tbe pi’oof of plaintiff’s injuries may be more clearly and satisfactorily shown, we will express no opinion on tbe subject of tbe amount of damages.

By the Oourt. — Judgment reversed, and tbe cause remanded for a new trial.