Howard v. Beldenville Lumber Co.

Maeshall, J.

Tbe proceedings which occurred during the impaneling of the jury and at the close of the evidence, in regard to whether any casualty insurance company was interested in the litigation, merit criticism. Whether, under the circumstances, they should be regarded, of themselves, as prejudicially erroneous, is questionable and need not be decided. It may be otherwise, though, if so, they come very dangerously near that line.

Very much of the criticism, indulged in as to a tendency of jurors in cases of this sort of deciding issues from biased views, suggests rather faulty administration than inherent weakness in the jury system. It is firmly believed that by careful attention, from the beginning to the end of a jury trial, to protect the jury from all ulterior influences and to carefully avoid useless colloquies between court and counsel having a suggestive tendency as to the nonprofessional hearers, regarding the mental leanings of the court either as regards the particular case or similar controversies, and such attention by manner and speech, so far as practicable, to persuade the jury up to the ideal plane of absolute impartiality necessary to a decision of the controversy in hand, entirely uninfluenced by anything except the evidence produced before them and the law as given by the court, the results will continue in the future, as in the past, to vindicate the truth of the saying that the safest tribunal that has been or probably can be created to decide mere issues of fact, is a carefully impaneled jury of twelve men. From our own experience as trial judges, we are utterly unable to appreciate *108 the frequent suggestions made that a defendant in a ease of this sort, or one where an insurance company defends, cannot, by reason of inherent weakness in the system, obtain justice at the hands of a jury.

The difficulty with the criticised proceedings is attributable to the attitude of all concerned in examining the jury on the voir dire. Counsel for plaintiff said:

“I don’t know if this is the proper time and place to mention anything with reference to the fact of a casualty insurance company being interested in this case.”

That was the initial mistake. There was no necessity for mentioning any such thing to the court or in the presence of the court other than by proper questions propounded to jurors. That first mistake was followed by a long colloquy between court and counsel, on both sides, as to the propriety of examining the jury respecting whether they were interested in any casualty company concerned in the litigation and as to whether the attorney who appeared for the defendant represented such a company, during which plaintiff’s attorney was accused by defendant’s attorney of endeavoring to prejudice the jury, and the latter, protesting innocence in that regard, asked leave to examine under oath defendant’s attorney as well as a Mr. Prince, who appeared to be the latter’s nonprofessional assistant, on the subject of discussion, ending with a suggestion by the judge that he would inquire into that later, and then himself taking up the matter of examining the jurors on such subject, which he did fully. Such proceedings, manifestly, are not well calculated to promote the attainment of justice. Just as clearly they have a tendency to create impressions in the minds of jurors prejudicial to the proper consideration of the case in hand.

If counsel for plaintiff had proceeded, without any announcement to the court, to ask the jurors as to whether they were directly or indirectly concerned in any casualty insurance.company, as a basis, if one existed, for challenges to the *109 favor or peremptory challenges, be would have been strictly within his right. There was no more necessity for the supposed preliminaries than there would be for a foundation for interrogating a juror as to whether he is a relative of any party to the litigation, or to either of the attorneys engaged therein, or interested directly or indirectly with any such party or attorney in business, or with reference to any other of numerous matters that might be suggested. It was the announcement by counsel, as if something of a peculiar nature was involved in the examination he proposed entering-upon, the attitude of the court with reference thereto and the whole proceedings, suggestive of such matter being specially out of the ordinary, and of the existence of a secret interest behind the litigation, putting the defendant in the position of falsely and secretly pretending to be the real party in interest — which was liable to work mischief. Quite similar-proceedings took place in Chybowski v. Bucyrus Co. 127 Wis. 332 , 106 N. W. 833 . There counsel for defendant was required by the court to disclose under oath whether he represented an insurance company concerned in the litigation. That was condemned, it being said:

“The mere fact that an insurance company was concerned in the litigation was wholly immaterial. The attitude of the court as to compelling appellant’s counsel to bear evidence in respect thereto, notwithstanding the assurance of respondent’s counsel that the information sought for was wanted only as a basis for interrogating the jury, clearly gave-undue importance to the insurance company’s connection ■with the case, since no such basis was necessary. It was a matter quite likely to prejudice the jury and should not have been adverted to at all except by questions to the particular-juror under examination and ‘strictly within the right’ to discover whether any bias or basis therefor on his part existed.”

The procedure in this case did not go quite so far, in the-presence of the jury, as in the one quoted from, so we feel *110 justified, here, in stopping short of condemning the same as sufficiently prejudicial, by itself, to work a reversal. Why the proceedings were taken, which occurred after the close of the evidence, of counsel and the court retiring from the presence of the jury and requiring the nonprofcssional assistant of appellant’s counsel to be sworn and, examined as to whether he represented any casualty insurance company con•cerned in the litigation, we are wholly unable to understand. Certainly, if they had to occur, the trial court is to be commended for having retired for the time being from the presence of the jury. It seems that the mainspring of the several steps, including the last, was the notion that some basis for the examination of the jurors on the particular subject was necessary to be affirmatively laid, including some showing of good faith on the part of counsel for the plaintiff. 'That was all wrong. No such basis was required, as before indicated, any more for the purpose of inquiring into such particular matter than for inquiring into any other, necessary, in the judgment of counsel, acting reasonably, to en.able him to perform his professional duty in selecting a jury. He should have simply asked fair questions in regard to the subject, and in case of an objection being made it should have been promptly overruled. . This subject has been sufficiently treated here in Faber v. C. Reiss C. Co. 124 Wis. 554 , 102 N. W. 1049 , and Chybowshi v. Bucyrus Co. 127 Wis. 332, to warrant omitting to pursue it further. We have discussed the same at considerable length because it seems, from this and the two other instances where we have recently been called upon to deal with the subject, that some pretty definite statement as to the proper conduct of judicial administration 'in respect to the matter is required.

Complaint is made thát evidence was permitted on rebuttal which was really cumulative. .Courts have a pretty wide discretion as to whether after a party has rested in chief and the opposite party shall have made his case the former shall *111 be restricted, as to further evidence, to such as is strictly rebuttal. The better practice is to direct the trial along the lines of regular order unless there is a fairly good reason for departing therefrom. We are unable to say that there was any inexcusable departure from such order in this case.

Further complaint is made because, the court failed to instruct the jury as to the meaning of the term burden of proof. There does not seem to have been any request for instructions on that line, therefore harmful error cannot be predicated on failure to do so. Seyring v. Eschweiler, 85 Wis. 117 , 55 N. W. 164 ; Lueck v. Heisler, 87 Wis. 644 , 58 N. W. 1101 ; Kock v. Ashland, 88 Wis. 603 , 60 N. W. 990 ; Odette v. State, 90 Wis. 258 , 62 N. W. 1054 . No error was -committed by submitting the case to the jury for a special verdict without request by counsel. The statute expressly authorizes such submissions. Sec. 2858, Stats. 1898.

Several assignments of error are presented for consideration as to questions contained in special verdict. It does not seem advisable to consider them in detail, though we will do so,in a general way. The verdict as framed by the learned court cannot well be considered a safe model to be followed. However, generally speaking, it covered the case, •confused though it was with some unnecessary questions, and faulty in not containing questions covering clearly the precise matters of fact in controversy on the evidence. This court has said so many times that a special verdict should be composed only of a sufficient number of questions to cover singly the issues raised by the pleadings, material to the case and controverted on the evidence, so worded that each question, so far as practicable, shall be susceptible of affirmative •or negative answer, that nothing can be gained, it seems, by a repetition in that regard. Strict attention to this matter is a judicial duty.

Here, there was no dispute but what the respondent was injured at the time alleged in the complaint. No question *112 on that point, therefore, was needed. The only negligence pleaded was failure on the part of defendant to seasonably repair a wornout condition of the main mill floor. That, at the most, required these questions: (a) Was there a hole in the mill floor as alleged ? (b) If there was such a hole, did the defendant know thereof a sufficient length of time before the accident, by the exercise of ordinary care, to repair the same before such time? (c) If there was such a hole, had it existed for such length of time before the accident that defendant, in the exercise of ordinary care, should have discovered and repaired the same before such time ? An affirmative answer to the first and to either of the others would have established the negligence complained of as a matter of law.

It will readily be observed that the matters covered by the suggested questions were distinctly pleaded as the ground of 'negligence relied on and were distinctly put in issue by the answer and were clearly controverted on the evidence. The trial court’s question: “Was the defendant guilty of negligence which caused plaintiff’s said injury ?” was in legal effect the three suggested questions combined. That is not the manner the special-verdict statute contemplates that such matters shall be submitted to a jury, 'though under proper instructions such method has not been condemned as fatally erroneous. However, we may well say in passing, trial courts should not feel at liberty to commit all errors which have been or may be held not fatal to the result which may finally be reached.

The next issue of fact in order was whether the existence of the hole in the floor, if one did exist as alleged, was the proximate cause of the plaintiff’s injury. On that a question should have been submitted about like this: If you answer the first question and either the second or third in the affirmative, were such'facts the proximate cause of plaintiff’s injury? That would have sufficed for these four questions *113 wbicb tbe learned court submitted: (a) “Was tbe defendant guilty of negligence wbicb caused plaintiff’s said injury?” (b) “Was plaintiff’s said injury produced by reason of negligence of bis co-employee, Hanson?” (c) “Was defendant’s alleged negligence tbe proximate cause of plaintiff’s said injury?” (d) “Was plaintiff’s said injury caused by tbe combined negligence of defendant and that of tbe plaintiff’s co-employee, Hanson?” There was no issue on tbe pleadings or tbe evidence warranting tbe questions designated as (b) and (d). Moreover, whether tbe injury was caused by tbe combined negligence of tbe defendant and bis co-employee, Hanson, if there bad been such an issue in tbe case, wbicb there was not, was entirely immaterial since such mere contributory negligence of a co-employee is not a defense in a case of this sort. Jones v. Florence M. Co. 66 Wis. 268, 284 , 28 N. W. 207 ; Paulmier v. Erie R. Co. 34 N. J. Law, 161; Franklin v. W. & St. P. R. Co. 37 Minn. 409 , 34 N. W. 898 ; Hunn v. Mich. Cent. R. Co. 78 Mich. 513 , 44 N. W. 502 ; Beach, Contrib. Neg. § 305. So by submitting tbe four questions instead of tbe one, tbe rule was violated that immaterial matters should not be included in a special verdict; also tbe rule was violated that questions should not be so framed as to cross-question tbe jury, and tbe further rule was violated that no question should be included in a special verdict not covering a distinct issuable controverted fact.

Complaint is made because of failure to submit a question covering tbe subject of assumption of risk. There are two answers to that: (1) There was no such issue in tbe case either by tbe pleadings or on tbe evidence. (2) Tbe general question on tbe subject of contributory negligence sufficiently covered tbe form of such negligence called assumption of tbe risk in tbe absence of any request for a particular submission of such matter. Hennesey v. C. & N. W. R. Co. 99 Wis. 109 , 74 N. W. 554 .

Tbe court said to tbe jury: “You are instructed that it *114 was tbe duty of tbe defendant to provide a place tbat was reasonably safe for tbe plaintiff to do bis work in while in tbe exercise of ordinary care,” and gave further instructions in connection therewith, well calculated to impress upon tbe minds of tbe jurors tbe idea tbat such rule applies, not only to tbe time tbe working place is originally furnished to tbe servant, but to every instant of time thereafter during tbe period of bis employment. Tbat was very misleading.

True, it is tbe duty of tbe master to furnish tbe servant with a reasonably safe place in which to work. True, tbat duty is absolute. It cannot be delegated by tbe master. It cannot be performed by him by merely exercising ordinary care to furnish such place. It is satisfied only by tbe actual furnishing thereof. But tbat refers to the time when tbe servant is put to work, not to every time when, thereafter, in tbe course of continuous employment, at tbe customary intervals, be re-occupies bis place, nor to every instant of time during tbe period of bis employment. A reasonably safe working place having been furnished tbe servant, tbe absolute duty in tbat regard is satisfied. Then becomes active tbe secondary duty to exercise ordinary care to preserve for tbe servant tbe reasonably safe condition of bis working place. In case of its becoming unsafe during tbe course of bis employment, ánd tbe servant receiving an injury thereby before tbe master has knowledge of tbe existence of tbe danger or has reasonable opportunity to obtain such knowledge, and reasonable opportunity to remedy tbe danger, be is not liable. Hulehan v. G. B., W. & St. P. R. Co. 68 Wis. 520 , 32 N. W. 529 ; Paine v. Eastern R. Co. 91 Wis. 340, 346 , 64 N. W. 1005 ; Quincy C. Co. v. Hood, 77 Ill. 68 ; Baldwin v. St. L., K. & N. R. Co. 68 Iowa, 37 , 25 N. W. 918 ; Stapf v. V. Loewer’s G. B. Co. 1 App. Div. 405 , 37 N. Y. Supp. 256 ; Artis v. Buffalo, R. & P. R. Co. 3 App. Div. 1 , 37 N. Y. Supp. 977 , 38 N. Y. Supp. 42 ; Park Hotel Co. v. Lockhart, 59 Ark. 465 , 28 S. W. 23 ; Wabash, St. L. & P. R. *115 Co. v. Locke, 112 Ind. 404 , 14 N. E. 391 ; St. Louis, Ft. S. & W. R. Co. v. Irwin, 37 Kan. 701 , 16 Pac. 146 ; Mickee v. Walter A. Wood M. & R. M. Co. 77 Hun, 559, 28 N. Y. Supp. 918 ; Haskins v. N. Y. Cent. & H. R. R. Co. 79 Hun, 159, 29 N. Y. Supp. 274 ; Binns v. R. & D. R. Co. 88 Va. 891 , 14 S. E. 701 ; 20 Am. & Eng. Ency. of Law (2d ed.) 92, 93, and cases cited in tbe note.

Tbe courts bave spoken thus decisively on tbe subject last discussed:

“It was incumbent on tbe plaintiff to show affirmatively tbat at tbe time tbe accident happened” tbe condition of the track “was either known to tbe company or bad existed for such length of time before tbe accident as to constitute notice to tbe company tbat tbe track was in an unsafe condition at tbat place.” This court speaking by Taylor, J., in Hulehan v. G. B., W. & St. P. R. Co. 68 Wis. 520, 525 .

“Tbe duty to provide a reasonably safe place for tbe employee to perform bis service in rests upon tbe master, and tbat duty is one tbat cannot be shifted or evaded by any attempt to delegate it.” “This duty is also a continuing one to tbe extent tbat tbe master must provide reasonably for tbe inspection and if need be for tbe repair of premises and appliances.” MONTGOMERY, J., in Anderson v. Mich. Cent. R. Co. 107 Mich. 591 , 65 N. W. 585 .

“Tbe doctrine tbat tbe master must provide a safe place has no application to tbe case where tbe place becomes unsafe during tbe progress of tbe work.” McClain, J., in Oleson v. Maple Grove C. &. M. Co. 115 Iowa, 74 , 87 N. W. 736 .

Tbe language of this court by Mr. Justice Winslow in Paine v. Eastern R. Co. 91 Wis. 340 , is quite as decisive.

In submitting tbe subject of proximate cause to tbe jury tbe learned court used the term “approximate,” both in tbe questions for tbe special verdict and tbe instructions. In this case probably tbe misuse of terms was not harmful since tbe court gave as an explanation of what was called “approximate cause” a fairly accurate definition of proximate cause.

Quite inexcusable error was committed, we feel called *116 upon to say, iu view of the many recent decisions of this-court on the subject, in that the court while submitting the case to the jury for a special verdict gave at considerable length general instructions. Such instructions, as has often been said, are wholly unsuitable in case of a special verdict.. It may be that it was supposed by the learned court that since the verdict was required upon the court’s own motion, instead of in response to the demand of counsel, a different rule would apply than the one so many times emphatically proclaimed by this court. If so, the supposition was baseless. There is no reason for the instructions to be specifically directed to the special questions in case of a special verdict, when required by counsel, that does not apply, just as strongly, when it is otherwise required. This court has held upon due consideration of the matter that in case of such a verdict the parties to the litigation are entitled, as a matter of statutory right, to have the jury instructed as to-the particular questions submitted, and not generally at all. Lyon v. Grand Rapids, 121 Wis. 609 , 99 N. W. 311 ; Van de Bogart v. M. & M. P. Co. 127 Wis. 104 , 106 N. W. 805 ; Schneider v. C., M. & St. P. R. Co. 99 Wis. 378, 388 , 75 N. W. 169 ; Ward v. C., M. & St. P. R. Co. 102 Wis. 215, 219 , 78 N. W. 442 ; New Home S. M. Co. v. Simon, 104 Wis. 120 , 80 N. W. 71 ; Brunette v. Gagen, 106 Wis. 618 , 82 N. W. 564 ; Rhyner v. Menasha, 107 Wis. 201, 206 , 83 N. W. 303 ; Sladky v. Marinette L. Co. 107 Wis. 250, 259 , 83 N. W. 514 ; Musbach v. Wis. C. Co. 108 Wis. 57 , 84 N. W. 36 ; Bartlett v. Collins, 109 Wis. 477 , 85 N. W. 703 ; Mauch v. Hartford, 1- 12 Wis. 40 , 87 N. W. 816 ; Byington v. Merrill, 112 Wis. 211 , 88 N. W. 26 ; Cullen v. Hanisch, 114 Wis. 24, 37 , 89 N. W. 900 ; Okonski v. Pa. & O. F. Co. 114 Wis. 448, 457 , 90 N. W. 429 ; Gutzman v. Clancy, 114 Wis. 589 , 90 N. W. 1081 .

This instruction was given to the jury on the subject of damages: “Tou will also assess all such sums as you are *117 satisfied from evidence will recompense bim for all future suffering, both, mental and physical.” That was prejudi-cially erroneous. The jury should have been limited in assessing damages for future suffering, mental and physical, to such loss, in that regard, as the evidence satisfied them would be reasonably certain to result from the injury. White v. Milwaukee C. R. Co. 61 Wis. 536 , 21 N. W. 524 ; Hardy v. Milwaukee St. R. Co. 89 Wis. 183, 187 , 61 N. W. 771 ; Block v. Milwaukee St. R. Co. 89 Wis. 371, 380 , 61 N. W. 1101 ; Raymond v. Keseberg, 91 Wis. 191 , 64 N. W. 861 ; Groundwater v. Washington, 92 Wis. 56, 61 , 65 N. W. 871 ; Kliegel v. Aitken, 94 Wis. 432, 438 , 69 N. W. 67 ; Collins v. Janesville, 99 Wis. 464, 465 , 75 N. W. 88 ; Boelter v. Ross L. Co. 103 Wis. 324, 330 , 79 N. W. 243 .

Error is assigned, raising the question as to whether the evidence presented a fair jury question regarding whether respondent received his injury in the manner he claimed he did. A careful study of the record has resulted in some hesitation in reaching a satisfactory conclusion in respect thereto. It certainly seems quite improbable that one could have his hand caught between the belt and rim of a- heavy iron pulley, twenty-four inches in diameter and eight inches on the face, revolving at the rate of 600 revolutions per minute or sixty feet per second, the sides of the pulley being within three inches of the sides of a box inclosing it, and that the arm could be carried down and around the pulley to a point of release, dragging it necessarily in between the sides of the pulley and the sides of the box, and forcibly jerking the body forward, without much more disastrous consequences than occurred in this case. To the majority, but not all, of the members of the court the respondent’s story does not seem wholly improbable. Again, the almost overwhelming evidence that the respondent stated, on numerous occasions after he was injured, that he did not know how the injury occurred; that the story told upon the trial *118 was not known, to any one, so far as appears, till tbe action was commenced, and two apparently credible witnesses examined tbe condition of things at and in tbe vicinity of tbe alleged scene of injury shortly after tbe accident and found all in order, while, if respondent’s testimony be true, tbe door of tbe sawdust box must have been left down from tbe time of tbe accident till some one other than himself replaced it, and still other circumstances that might be referred to, involving tbe matter in doubt, lead to tbe conclusion, on tbe part, at least, of tbe writer, that tbe evidence, as a whole, did not remove tbe question of bow tbe accident occurred from tbe realms of mere conjecture and so did not present a fair jury question under tbe rule laid down in Hyer v. Janesville, 101 Wis. 371 , 77 N. W. 729 . However, by far tbe prevailing opinion is that tbe respondent’s positive story of bow bis injury was received was not so incrediblé but what it was permissible for tbe jury to believe it and to base a verdict thereon. That rules tbe case on that subject in bis favor, so tbe decision must be and is that tbe question in relation thereto was properly submitted to tbe jury.

Further complaint is made that tbe damages assessed aro grossly excessive. Tbe man was thirty-one years of age when be was injured. ITe was capable of earning $2.50 to $3 per day. He was not a common laborer, but an engineer. Tbe evidence was to tbe effect that bis arm near tbe shoulder and tbe shoulder were partially paralyzed and that tbe balance of tbe arm was totally so; that tbe motor and sensor nerves were destroyed beyond any reasonable expectation of restoration, leaving bis arm practically a dead body: an incumbrance. Tbe evidence tended to if it did not conclusively show that such condition would not materially change for tbe better. Manifestly from such evidence the respondent’s injury was a very serious one. It was much more so than tbe mere loss of an arm would be. Tbe circumstance also is quite material that tbe injured mem *119 ber was the right arm.- A careful examination of the precedents satisfies us that we would not be- justified in condemning the verdict as fatally excessive, though doubtless it approached dangerously near the border line thereof, notwithstanding, as indicated, the injury was a very severe one.

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