Matke v. Beilke
Matke v. Beilke
Opinion of the Court
Defendants assert that plaintiff’s negligence was, as a matter of law, equal to or greater than that of Foster. Plaintiff argued here that the sole cause of the accident was that Foster caused the hoe boom to drop so that the claws of the hoe bucket pushed against the chain and caused the bell end of the pipe to move into the sand and the spigot end to swing and hit Matke. There was testimony by Matke that after the accident he observed the hoe boom and bucket in the position claimed. Defendants’ witnesses both testified that the boom did not move to any material extent. Matke heard a clanging of iron just before he was
The evidence would also have supported findings that Matke gave a “hold everything” signal after the chain was tightened; that Foster negligently failed to see or heed this signal but instead raised the pipe; that Matke turned away from the pipe without making sufficient observation to determine that he could do so in safety. In view of the jury’s attributing almost 50 per cent of the causal negligence to Matke, it seems to' us probable that the jury adopted the second view. Under either view, we cannot say as a matter of law that Matke’s negligence was equal to or greater than that of Foster.
Defendants also claim that the case was not properly submitted to the jury because the court asked only a general question as to the negligence of Matke and a similar question as to the negligence of Foster. Neither party had requested a special verdict before the introduction of testimony. After the close of testimony defendants requested the court to submit, in addition to questions on negligence not involving the signal, six questions in substance:
1. Did Matke give the signal to raise the pipe?
2. If not, was Foster negligent in failing to obey Matke’s signal ?
3. Was such negligence causal?
4. Did Matke give the signal to “hold everything?”
5. If not, was Matke negligent with respect to giving a proper signal ?
6. Was such negligence causal?
The complaint alleged negligent operation of the machine by Foster and neither the complaint nor the answer suggested any subdivision of the issue of negligence. The trial judge felt that the submission of the questions requested by de
By the Court. — Judgment affirmed.
Reference
- Full Case Name
- Matke v. Beilke and another
- Status
- Published