Bugajski v. Milwaukee Western Fuel Co.

The negligence of defendant, claimed, is failure to warn appellant of the dangers incident to his employment which were known to the former, or reasonably *458ought to have been known to it, and which were, as respondent. knew, or ought reasonably to have known, not within the knowledge of appellant. Those matters were put in issue by the pleadings and were vital in the case. They should have been covered by appropriate questions so phrased as to have plainly challenged the attention of the jury thereto. That was not done. The failure to do so, in the face of the request by appellant’s counsel for submission of such issues, was a denial of a statutory right and plainly error, as this court has often held. Sufferling v. Heyl & Patterson, 139 Wis. 510, 121 N. W. 251; Carle v. Nelson, 145 Wis. 593, 599, 130 N. W. 467.

Counsel for respondent answer the assignment of error mentioned by suggesting that there was no question on the evidence but that the duty to instruct and warn existed, if there was any necessity therefor by reason of inexperience of appellant, and that no instruction or warning was given; so whether there was failure of duty arising to the dignity ef actionable negligence, depended upon whether appellant was in need of instructions and that was covered, in terms or effect, in the questions which the court submitted.

It may be that enough can be spelled out of the verdict in connection with matters conclusively appearing, to cover the case; but it were better for special verdicts to be carefully framed, as this court has time and again suggested, each fact in issue by the pleadings, and evidentiarily controverted, being covered by a question, using words which, in their literal sense, describe the particular matter and so as to call for an affirmative or negative answer. That was not done here. There was a wide departure from such rule. The verdict seems to have been framed without regard to the particular breaches of duty pleaded by appellant and put in issue by respondent. No specific matter is covered by any question constituting want of ordinary care on the part of defend*459ant. Two questions, only, were devoted to its alleged fault: First, Did the defendant’s foreman direct plaintiff to do the work? and second, If so, was such direction the proximate cause of the injury ?

Obviously, there was no fault in merely directing appellant to serve as cable man. 'Whether there was fault or not depended upon whether he, from want of experience known to respondent, or which reasonably ought to have been known to it, needed instructions as to how to do the work, and warning of the dangers incident to not doing it properly.

The learned trial court seems not to have appreciated that it is breach of duty, denominated failure to exercise ordinary care, and proximate relation of such failure to the injury, which constitutes actionable negligence, and not, necessarily, any mere physical act. Since the first question was confined to the act of directing appellant to do the particular work, it should have been followed by a question, or questions, covering matters pleaded, making such direction, under the circumstances, a negligent act, or, at least, by some such question as, — did the foreman in directing plaintiff fail to exercise ordinary care, — in connection with such instructions as would make such question give vitality to the first question.

We do not overlook the fact that the court so instructed, in respect to the question as to whether the direction of plaintiff to do the work was the proximate cause of his injury, that in order to answer in the affirmative the jury were required to find that, when the foreman gave the fatal directions, he reasonably ought to have apprehended that a personal injury to plaintiff or some one might probably result, and, so, the jury, in answering Yes, logically, must have so found, and thus, in a way, covered the question of whether there was culpable negligence in failing to warn and instruct. Thus, by construction, the verdict may, perhaps, be said to include the material issues. Doubtless, under the now well recognized *460duty bere to pass over imperfections as inconsequential which do not affirmatively appear to have, within-reasonable probabilities, influenced the result unfavorably to the party complaining, all reasonable inferences should be indulged in to support a verdict, and those things appearing by such inferences and by reasonable construction should be considered embodied therein. But, if in answering the two questions, the jury passed on the issue as to actionable negligence, so as to make a substantially perfect verdict in that regard, the consequence would seem to be that appellant was so inexperienced as to leave little or no room for a finding of contributory negligence; that the two appear somewhat, if not quite, inconsistent. If appellant breached his duty to conserve his own safety, then it would seem that he was not so wanting in experience as to render respondent culpably negligent in directing him to do the work without instructions and warning. It looks as if the jury found defendant actionably negligent, in that it failed to give its inexperienced employee proper instructions or warning, and then turned about and convicted appellant of a breach of duty as to self care because he knew, or ought to have known, of the dangers incident to the work.

We are constrained to hold that by reason of faulty submission of the case, the jury failed to understand it and an ambiguous, if not inconsistent, verdict resulted. It may well be that, had the case been more carefully submitted so as to have given the jury a clear conception of the several controverted issues of fact, the result might have been more favorable to 'appellant.

The result of the case is most unfortunate to the parties, and the public as well. It may admonish as to the importance of following the statute and the decisions of this court as to the manner of submitting a case for a special verdict. There is nothing difficult about it. It is hoped that the law requiring this court to overlook all errors not so consequential *461as to affirmatively appear from tbe whole record to have worked prejudicially to the party complaining, in that had1 they not occurred the result might have been more favorable to him, will not promote inattention to the essentials of correct practice.

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