Klatt v. N. C. Foster Lumber Co. ( 1897 )

MaRshall, J.

Error is assigned on the refusal of the trial court to grant defendant’s motion for a nonsuit and also its motion to direct a verdict. On a former appeal in this case a judgment in plaintiff’s favor was reversed and the cause remanded for a new trial. [92 Wis. 622]. The evidence was the same, substantially, then as now. The question of whether the evidence on such former appeal showed conclusively contributory negligence of plaintiff was raised but not discussed in the opinion, though it is considered that the decision was, in effect, that the evidence was sufficient to carry the case to the jury on all the issuable facts as to plaintiff’s cause of action. It follows that, the evidence being the same on this appeal, the question of whether there was sufficient evidence to warrant submission of the case to the jury must be considered foreclosed by the former decision, and that the ruling on the motion for a nonsuit, and the motion for the direction of a verdict as well, cannot be disturbed.

Error is assigned on the refusal of the court to instruct the jury as follows: “You cannot find that the defendant was negligent merely because of its failure to provide a partition, guard, contrivance, or appliance between the sprocket wheel and chain, on which plaintiff was injured, and the place where he worked,” and because the court instructed the jury to the effect that there was a conflict in the testimony in respect to whether there was a cleat at the side of the chain and sprocket wheel at the time of the accident, and that the jury should consider all the evidence as to the construction and situation of the machinery and premises, and determine from all the evidence whether defendant exercised the same degree of care as was usually exercised under similar circumstances in respect to the safety of the machinery where plaintiff was at work. We are unable to say that error was committed by the rulings referred to. It is not clear from the evidence that ordinary care, under the circumstances, did not require some protection to guard against the-danger of employees, circumstanced as plaintiff was, getting their feet caught in the chain and sprocket wheel. So we cannot say, as a matter of law, that the omission of such guard was not negligence.

The statute of this state requires all gearing so located as to be dangerous to employees when engaged in their ordinary duties to be securely guarded so as to be safe to such employees in such employment. If the sprocket wheel was so located as to be dangerous to plaintiff while engaged in his ordinary duties, unless guarded in some proper way, then the statute applies and the absence of the guard was negligence per se. This court has distinctly held that where the law requires some particular thing to be done by a person to guard the personal safety of others, a failure to perform the duty so imposed constitutes actionable negligence at the suit of a pei’son of that class, injured by such failure of duty, without contributory negligence on his part. Smith v. Milwaukee B. & T. Exchange, 91 Wis. 360. The fact that a penalty is imposed, by the law requiring the performance of the duty, for non-compliance therewith, makes no difference, unless the penalty be expressly given.,to. .the. party injured in satisfaction of such injury. In Wharton on Negligence (§ 443) the rule is stated thus: “ Where a statute requires an act to be done or abstained from by one person for the benefit of another, then an action lies in the latter’s favor against the former for neglect in such act or abstinence, even though the statute gives no special remedy. The imposition of a penalty by the statute does not .take the place of the remedy by suit for negligence, unless the penalty be given to the party injured in satisfaction for the injury,” In support of that numerous authorities are cited by the author. The doctrine was early sanctioned by this court, and has been adhered to in a long line of decisions. In McCall v. Chamberlain, 13 Wis. 637, Mr. Justice Raistb, in discussing the subject, said, in effect, that it is a general principle that where the law imposes upon any person a specific duty for the protection or benefit of others, if he neglects to perform that duty he is liable to those for whose benefit it was imposed, for any damages sustained by reason of such neglect. To the same effect are Dunnigan v. C. & N. W. R. Co. 18 Wis. 28; Atkinson v. Goodrich Transp. Co. 60 Wis. 141; and Toutloff v. Green Bay, 91 Wis. 490.

Citation of authorities outside our own state, to support a principle so well established, is hardly necessary, though, as the rule appears to be challenged here by eminent counsel, we will refer to a few leading authorities elsewhere on. "the subject. The rule laid down by Lord Campbell in Couch v. Steel, 3 El. & Bl. 402, is usually cited by text writers as covering the subject, and it has been generally adopted in this country as the correct doctrine. It is to the effect that in every case where a statute enacts or prohibits a thing for the benefit of a person, he has a remedy upon the same statute for the thing enacted for his advantage, or for a recompense for the wrong done to him contrary to law, and independent of any penalty recoverable by the public for the offense. In Hayes v. M. C. R. Co. 111 U. S. 228, Mr. Justice Matthews, speaking on the same subject, said, in effect, such an imposed duty is due, not to the municipality as such, but to the public as individuals, and each person specially injured by the breach of the obligation is entitled to his individual compensation and to an action for its recovery. To the same effect is Union P. R. Co. v. McDonald, 152 U. S. 262. True, it is sometimes said that the omission of a statutory ■duty is not negligence per se, but only evidence of negligence. That rule applies only where the injury caused is not within the scope intended to be guarded against by the statutory requirement, as in cases of injuries to persons, contributed to by failure to fence railway tracks, the primary purpose of which is to prevent injuries to cattle and other domestic animals. Schmidt v. M. & St. P. R. Co. 23 Wis. 186. In Union P. R. Co. v. McDonald, supra, and Hayes v. M. C. R. Co., supra, the distinction is clearly pointed out between cases where omission of a statutory duty is negligence^??* se, and where evidence of negligence only.

Error is assigned on the refusal of the trial court to instruct the jury as follows: “If the plaintiff could prior to the accident, by the exercise of ordinary care, have apprehended the dangers incident to his employment, then your verdict should be for the defendant.” The questions submitted for the special verdict cover all the issuable facts; therefore the refusal of instructions requested not directed to particular questions, but generally, on some branch of the law of negligence applicable to the case, cannot be successfully assigned as error. Burns v. North Chicago Rolling Mill Co. 60 Wis. 541. The request in question seems to come within that rule.

The eighth interrogatory covers the subject of whether the dangers to which plaintiff was exposed were such as would ordinarily be apparent to a person circumstanced as he was and having the knowledge and experience he possessed. In regard thereto the court informed the jury that it related to the issue of contributory negligence,' and instructed them, in regard to the term “ ordinary care ” as used in the question, that it referred to such care as minors, of plaintiff’s age and intelligence and experience usually used under similar circumstances. No objection was raised to the question itself, but it is claimed that the instruction improperly limited it to minors of the age and intelligence of plaintiff. We are-unable to sustain this contention. The language of the instruction was strictly accurate as a statement of a proposition of law applicable to the case, and was a proper explanation of the question. It confined the inquiry to the care ordinarily exercised by persons of plaintiff’s age and intelligence, with his experience and his knowledge, circumstanced in all respects as he was at the time of the injury. That fenced the inquiry in so as to confine it. to the particular case the jury were called upon to determine on the evidence.

Mr. Y. W. James, a witness for defendant, having testified to a conversation he had with plaintiff about the circumstances of the latter’s injury, was asked on cross-examination in respect to who employed him to interview the plaintiff, and in respect to the witness’ connection with the case at that time. The question was objected to and the objection overruled. That is assigned as error. It was proper to show on cross-examination that the witness, at the time he claimed to have conversed with plaintiff, was interested on the side of the defendant, as bearing on the credibility and weight of his evidence. The fact that his connection with the cáse ceased before the trial was proper for the consideration of the jury in determining to what-extent, if any, his connection with the case at the time in question impaired the weight of his evidence, but did not render the admission of the evidence improper.

Error is further assigned on the denial of defendant’s motion to set aside the verdict and for a new trial, but we-are unable to find any reason for disturbing the ruling on such motion. All the questions essential to plaintiff’s right of recovery were submitted to the jury in the special verdict. There is some evidence to sustain each of the answers to such questions, and no reversible error is found in the-record.

By the Court.— The judgment of the circuit court is affirmed.