Deisenrieter v. Kraus-Merkel Malting Co. , 1896 Wisc. LEXIS 261 ( 1896 )

NewsiaN, J.

It is manifest that the special verdict, as rendered, would not warrant or support a judgment against ■ the defendant. It does not determine sufficient of the material questions of fact against the defendant to show that, ' as matter of law, it is liable to the plaintiff for his damages. So that, on the verdict as rendered, no judgment other than the one rendered was justifiable or possible. The judgment is right upon the verdict. If the case was properly tried and submitted, so that the verdict can be sustained, there should be-affirmance. But if the case against the defendant was not properly tried and submitted, then the plaintiff’s motion for ■ a new trial should have been granted upon some of the several grounds alleged, and the judgment must be reversed. So the general question to be considered upon this appeal is. whether the issues involved in the trial were fairly to the plaintiff submitted to the jury.

In the examination of this question, first in importance • and logical sequence seems to be the question whether the special verdict, as submitted, comprehends all the material issues involved which bear upon the question of the defendant’s negligence. The questions relating to this branch of' the case are Nos. 12, 13, 14, and 15. By No. 12 it is found that the defendant did not know that the fumes of burning-sulphur escaped to the room where the plaintiff was at work,. at the time of the accident; by No. 13, that the defendant-ought to have known it; by No. 14, that the defendant did not know that the sulphurous fumes which were escaping-to the room where the plaintiff was working, at the time of the injury, were dangerous to a person at work at that. place; and by No. 15, that it was no part of the defendant’s, duty to know it. These questions seem to have been infelicitous and inadequate to elicit conclusions of the more important issues of fact involved in the case. The more obvious criticism is that they all relate exclusively to the defendant’s knowledge, or obligation to know, of the plaintiff’s actual situation and danger at the precise time and place-of the accident, limiting the scope of inquiry, and suggesting to the jury that, in the mind of the court, knowledge, or the obligation to know, at that very time, was the crucial, test in the case. Whereas the test of the defendant’s liability rested rather upon its knowledge and responsibility for a train of causes which culminated, at that time, in the plaintiff’s accident. The questions themselves were well fitted to divert the consideration, both of the court and the-jury, from the more important and controlling considerations to those of mere incidental or minor importance. It would have been more to the purpose to have inquired if .the defendant knew, or ought to have known, that the-fumes of sulphur burned as part of the process by which its business was carried on would be pervasive of the-whole-building, and might become so dense and strong as to produce suffocation of employees who were exposed to it, and whether, knowing such danger, it used proper care to prevent accidents by warning its employees or otherwise.

It might have been well, too, to have asked some question calling for a determination of this fact: whether, in. the manner in which sulphur was used in the defendant’s, business, it did create real danger to the defendant’s employees. The defendant could not, apparently, be liable, unless it was operating its works in a manner or with appliances which created a real danger, and it must have bee» a danger imminent to such a degree, at least, that it would have been negligent not to have warned employees who-were ignorant of its existence. The defendant could not. foe liable for accidents which it could not reasonably anticipate as likely to happen, or from the operation of causes of ■which it was excusably ignorant. Atkinson v. Goodrich Transp. Co. 60 Wis. 141; Barton v. Pepin Co. Agr. Soc. 83 Wis. 19. And whether there was danger in this process, and so great danger that it was want of ordinary care not .to warn employees against it, is not so clear upon the evidence that the inference may be drawn by the court. For it does not appear that like harm has ever before befallen ■from a like cause in a similar business.

Something equivalent to these suggested questions should .have been submitted. Rut there is nothing which is substantially equivalent. There is no finding that the process was dangerous, nor anything found from which it can be inferred. In the seventh finding it is found that the plaintiff ought to have known “the dangers resulting;” in the fifteenth, that there was no duty on the defendant to know that the fumes were dangerous. This falls far short of finding that the fumes were dangerous. Something equivalent to an explicit finding on that point seems to be indispensable. So, too, was it negligent not to warn? That depends, in a degree, on the degree of danger. There is •some danger in most employments. Negligence bears some ^relation to the degree of danger. It was a question for the jury under this evidence. These four questions, with their answers, are not, indeed, inharmonious, but they contain little which tends to illuminate the ultimate question whether the defendant is responsible for the plaintiff’s damages.

The plaintiff excepted to the submission of the several «questions which were submitted in the special verdict, and requested the submission of others, which were refused. Among the questions which he asked to have submitted ■were these, in substance: Whether the defendant was negligent in permitting the fumes of burning sulphur and salt to ■«orne into that part of the room where the plaintiff was at work. What was the proximate cause of the plaintiff’s injury ? These questions were pertinent to the issue. Perhaps they were not sufficiently full or definite. Rut, in some form, the questions suggested by them should have been ■.submitted to the jury.

It is said that several answers of the special verdict relating to the defense of contributory negligence are in conflict with each other. Especially No. 8 is said to conflict with No. 10, and No. 10 is said to be at variance with No. 11. ' It looks so. But that does not interest the plaintiff upon this •appeal. If all that part of the verdict were ignored or stricken ■out, or were all in his favor, he would still be as far as ever from the judgment which he desires.

Eor the reasons stated, there must be a new trial.

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