
    Johnson, by guardian ad litem, Respondent, vs. St. Paul & Western Coal Company, Appellant.
    
      December 12, 1905
    
    January 9, 1906.
    
    
      Master and servant: Injury to servant: Evidence: Res gestee: Oourt and jury: Negligence: Contributory negligence: Special verdict: Incompetency of fellow-servant: Notice to employer: Instructions to jury: Discovery: Examination of officer of corporation: Damages.
    
    1. An exclamation by one present when a boy fell through the hatch of a vessel, made at the place of and almost immediately after the accident, that “the hook hit him” was a part of the res gestee of the accident.
    2. It was a question for the jury, upon the evidence in this case, whether plaintiff, upon the deck of a vessel, was struck by a-swinging sheave and hook used in hoisting coal from the hold; and the evidence was -sufficient to sustain a finding by the jury that the hoister was negligent in starting to raise the hook with a jerk which set it to swinging violently.
    3. Plaintiff, whose duty it was to steady the buckets of coal as they were hoisted through the hatches, could not be said, as matter of law, upon the evidence, to have assumed the risk of the empty sheave and hook being raised through the hatch with a jerk or with great rapidity contrary to custom, nor- to have been guilty of contributory negligence in failing to remain, -after the whistle blew for the men to quit work, to watch the empty hook until it swung clear of the deck and to steady it if swinging.
    
      4. In an action for injuries to a servant, a negative answer in the special verdict to a general question covering contributory negligence sufficiently negatived assumption of risk; and the failure to submit a separate question as to assumption of risk, was not error in the absence of any request therefor or for an instruction specifically upon that point.
    5. Evidence showing, among other things, specific instances of carelessness on the part of the hoister, who managed the apparatus-, for raising coal from the hold of a vessel, and also his habits of carelessness and his reputation in that regard, is held to sustain a finding that he was incompetent to perform such duties..
    6. Notice of the incompetency of an employee to a foreman who-had supervision of the'work in which such employee and others, were engaged and had power to discharge in case of incompetency, was notice to the employer.
    7. A requested instruction touching the general question of the liability of the defendant and not applicable to any of the questions of fact submitted by a special verdict, cannot properly he given to the jury.
    8. An employer need not have had actual knowledge that a servant-had become incompetent since his employment in order to render him liable to another servant for injuries caused by negligence of the incompetent one. It is sufficient if, in the exercise of reasonable care, the employer should have learned of such incompetency.
    9. In an action for injuries to a servant through negligence of a fellow-servant, an instruction that “ordinary care in such a ease is such care as the great mass of mankind would have exercised under the same circumstances” was- not erroneous because of the omission of the words “engaged in a similar employment.”
    10. Where a private corporation is a party, the examination of a principal officer thereof (in this case the superintendent of the-dock of a coal company) under sec. 4096, Stats. 1898, as amended by ch. 244, Laws of 1901, is in effect the examination of the-corporation and is admissible against it as original evidence in the nature of an admission, even though the officer examined is present in court. Hughes v. 0.„ 8t. P., M. <& O. B. Oo. 122-Wis. 258, distinguished.
    11. An award of $3,000 damages to a boy who, through defendant’s negligence, fell nearly thirty feet into the hold of a vessel and was still suffering'therefrom at the time of the trial more than-three months later, the permanency of his disabilities being a. question in dispute by the experts, is held not excessive.
    
      Appeal from a judgment of tbe superior court of Douglas county: Chakles Smith, Judge.
    
      Affirmed.
    
    This is an action to recover damages for personal injuries suffered by tbe plaintiff July 16, 1904. Tbe defendant was and is a corporation operating a large coal dock at tbe city of Superior, where coal is unloaded from vessels by machinery and loaded into cars. On tbe date aforesaid tbe plaintiff, a boy then sixteen years of age, was employed by tbe defendant as a batch tender, and was in some manner precipitated through one of tbe open batches of a vessel then being unloaded at tbe dock and received serious injuries. Tbe plaint: iff’s claim is that be was struck by a heavy sheave and book used to lower coal buckets into tbe vessel, and that be was so struck by reason of the negligence of an incompetent employee of tbe defendant called a hoister, who was operating tbe sheave and book, and that tbe defendant knew, or ought to have known, of such incompetence. .
    Tbe evidence1 showed that upon tbe defendant’s coal dock there were maintained at the time of tbe accident eight unloading rigs or derricks, which were used in removing coal from vessels lying at tbe dock, by machinery operated by steam power; that these rigs are timber structures of considerable height, located along tbe edge or face of tbe dock, and placed upon wheels resting upon tracks running tbe full length of tbe dock, so that they can'be moved laterally to tbe exact point desired for unloading coal from vessels; that each rig has an engine room in tbe lower part, above which is a small hoisting bouse, where tbe hoister stands and operates two levers controlling tbe hoisting apparatus; that on tbe right of the hoisting bouse is a bin or hopper in which the coal is dumped as it is brought up from the boat, and passes into ■small cars below and back of this bin, and on the same level is ■a room'in which the hoisting drums and friction wheels, which are operated by the hoister’s levers, are located; that about twenty feet above the platform upon which the hoisting house is placed there is a boom thirty feet in length, extending from the rig outward and over the boat to be unloaded, upon the top of which boom are rails, upon which rails a small four-wheeled iron carriage is placed which runs from the rig out to the end of the boom and back into the rig and carries two sheaves for the wire rope or hoisting line to pass over; that at the end of the boom is a small sheave for the rope, which is attached to the outer end of the carriage, to pass over, which rope is called the carriage line, and passes back into the machinery house and around a drum, the other end being attached to the inner end of the carriage, so that the hoister may apply, by his lever, a friction wheel to the drum, and as the carriage line winds or unwinds the carriage moves in or out upon the boom; that the hoisting line passes over one of the sheaves in the carriage and then down to the hoisting hook and sheave, and thence back to and through the carriage again to another hoisting drum, to which it is attached, which dram is operated also by the hoister by means of a friction wheel, and as the hoisting line is wound up or unwound upon the dram the hook and sheave is either raised or lowered into the vessel below; that the hoisting hook and sheave, which is thus lowered into the vessel, is a heavy apparatus, some two and one-half feet in length, and upon it are fastened coal buckets; that the hoister, standing in the hoisting house, is able to see the vessel and hatchway below through windows in the house, and can see the coal bucket as it descends until it gets down into the hold of the boat; that the hoister operates the machinery by the use of the two levers, the left-hand lever controlling the carriage line and the right-hand lever controlling the hoisting line, both of which lines are wound and unwound upon the drams, which drums are set in motion by the application of friction wheels controlled by the levers; that the coal bucket is lowered into the hold of the boat through the hatch by means of the carriage carrying, the bucket out on the boom to the lowering point, and that the hatch tender is stationed on the deck of tlie vessel by the side of the open hatch, and gives signals to the hoister when to lower the bucket into the hold of the vessel and when to raise the bucket or hook from the hold, accordingly as he sees that everything is clear in the hold; that in the hold are stationed six coal heavers, working in sets of two, and that three buckets are used to keep the rig in active operation; that as soon as an empty bucket is lowered the men to whom it belongs seize it and carry it away from the center of the hatch to the side to fill it, and then take oil the hook, and the men that have a filled bucket attach' the hook to their bucket, and the hatch tender gives the signal to the hoister to start the bucket, and as it swings- up from the hold it is steadied, first by the coal heavers and then by the hatch tender, who has an iron hook for that purpose, so that it may rise without swinging until it reaches the carriage, which in the meantime has been started toward the bin by the hoister; that as the bucket reaches a point over the bin the bail strikes an automatic dumper, causing the bucket to be dumped into the bin.
    The evidence further shows that one Mbrtes was acting as-hoister upon the rig in question on the day of the accident,, and that the plaintiff was acting as hatch tender at one of the hatches upon the steamer Hoyt, which was then unloading-coal at the dock; that the deck of the boat at the time of the accident was about fifteen feet above the dock floor, and that there was a ladder at the stern of the boat, used to ascend or descend to and from the dock and boat; that the boat in question had some twenty hatches, each twenty-eight feet long transversely with the boat, eight feet wide, and' forty-two inches apart, and each surrounded by coamings a foot or more-in height; that the hatch through which the rig was operating was hatch No. 11, and that the plaintiff was stationed at the side of the hatch and between the same and hatch No. 12; that the rig had been in operation removing coal from this hatch all the afternoon upon the day of the' accident, and that. tbe whistle blew for stopping work at 6:45 p. m.; that just at this time an empty bucket was being lowered into the hatch, and as it reached the coal heavers the hatch tender gave notice to them that the whistle had blown, and the coal heavers disengaged the hook from the bucket and it started to swing; that the plaintiff, when he saw that the hook was disengaged and started to swing, gave the hoister, Mertes, the signal to raise the hook, and turned at once to pick up the box upon which he had been sitting and his guide hook, to leave his work. The plaintiff testifies that while he was picking up his box his side was toward the hatch, and he saw something black against his cheek, and that was the last that he remembered. It is undisputed that he fell into hatch No. 12 with his box and hook, and struck upon the bottom of the boat, a distance of some twenty-seven feet, and suffered severe injuries.
    The jury rendered a special verdict as follows:
    “(1) Was the plaintiff, Einer Johnson, injured on July 6, 1904, while in the employ of the defendant, by being struck by the sustaining hook or block, causing him to fall -through a hatch down into the hold of the steamer Hoyt, which was then being unloaded at the dock of the defendant located at Superior, Wisconsin? A. Yes.
    “If you answer question 1 Wes,’ then answer question 2 and the other questions.
    “(2) Did the hoister, Mertes, exercise ordinary care in raising the block and sustaining hook out of the hold of the vessel at the time the plaintiff was struck ? A. No.
    “(3) Was the hoister, Mertes, a competent man to perform the duties of hoister ? A. No.
    “(4) Did the defendant, prior to the injury to plaintiff, have knowledge that Mertes was an incompetent hoister ? A. Yes.
    “(5) Was the incompetency of the hoister, Mertes, the proximate cause of the injury to plaintiff ? A. Yes.
    “(6) Was the plaintiff, Einer Johnson, guilty of any want of ordinary care that contributed to the injury ? A. No.
    “(7) If the plaintiff should recover in this case, at what amount do you assess his damages ? A. $4,000.”
    
      Tbe defendant moved to strike out and change certain answers in tbe special verdict, and for judgment upon tbe verdict; also for judgment notwithstanding the verdict; also for new trial — all of which motions were overruled, except that a new trial was granted on the ground of excessive damages, unless the plaintiff should remit $1,000 from the verdict, in which case a new trial was denied. The plaintiff elected to make the remission, and judgment was entered for $3,000 damages and costs, and the defendant appeals.
    Nor the appellant there was a brief by H. 11. Grace, attorney, and 0. O. Hunter, of counsel, and oral argument by Mr. Grace.
    
    
      Victor Linley, for the respondent.
   WiNsrow, J.

The errors claimed by the appellant will be briefly considered.

It is contended that there is no sufficient proof to show that the hook and sheave hit the plaintiff, but that it is conclusively shown that the hook and sheave were not elevated above the deck. It is true there was evidence from a number of witnesses that the hook was not raised above the deck at the close of work on tire night of the accident, but remained suspended n foot or more below the deck all night. There is, however, the positive evidence of one witness, a boy nineteen years of age, who testifies that he was standing on the deck of the boat, about twenty-five feet from the plaintiff, and was looking towards him at the time the whistle blew; that he saw the hook and block come out of the hatch quicker than was ■usual when the bucket was on, and swinging lengthwise of the 'boat toward the plaintiff; that he saw the plaintiff stoop to pick up his box, and that he just straightened up and then fell over into the next hatch. Another witness, who was at work in the hold pushing buckets under another hatch at the time, from twenty to twenty-five feet distant from the place where the boy fell, testifies that he saw the boy fall, and went to him as soon as be fell; tbat be struck on bis bip first, and tben on bis back; tbat witness tben started up the ladder and holloed to the foreman to telephone for a doctor, and went back and beard some one say, ‘‘The book bit him.” This exclamation was clearly a part of the res gestee of the accident. The plaintiff testified tbat be turned and picked up bis box and was just straightening himself up when be saw something black right against bis cheek, and tbat was the last be remembered till be regained consciousness for a moment in the bold after bis fall. In addition „to this it was shown tbat the plaintiff’s right cheek was swelled and discolored as though it bad been bit by something, and tbat the swelling was visible ■for two or more weeks. In view of the fact tbat there was nothing else swinging which could have bit the plaintiff, we regard this evidence as entirely sufficient to carry the question to the jury.

It is claimed tbat there was no proof tbat Mertes, the boister, was guilty of any negligence. The negligence claimed by the plaintiff is tbat the boister started the book and block Avitb a jerk, and very rapidly,-thus causing it to swing violently, when the custom was to raise the book, when empty, more slowly than when it was loaded. The evidence tended to show tbat it was entirely possible for the boister to regulate, within certain limits, the speed with which the book or the book and bucket came up. "While it was shown tbat the power •shaft always ran at substantially the same rate of speed, it also appeared tbat the power was communicated to the drums by friction wheels, and tbat the boister could regulate the application of the friction by means of his levers, so that the ■drums would revolve at a moderate rate of speed or at a greater rate, as be chose, and could start the book gently or with a jerk. The evidence tended also to show tbat when the boister received the signal to raise the book at the time in ■question be started more rapidly than was usual with an 'empty book, and gave it a jerk which set it swinging violently, and that as it was coming np it struck the iron at the side of the hatch, thus increasing the swinging motion. Alertes himself testified as follows:

“When he [plaintiff] hollered of course he picked up his box and went away, so I paid no more attention to him. So I just raised up out of my position, and I ketched the lever with both hands, and this line had the hook on it. They had thrown the hook, and the hook was swinging, and she came up swinging in that position; but I didn’t stop. She struck Tinder the steel, and the hook jumped up. I kept on going just the same. I didn’t stop till I seen the man come running. lie stopped me.”

Comment on this seems unnecessary. It affords ample ground for a finding that the hook was raised with negligent speed and swinging violently.

Again, it is contended that the plaintiff assumed the risk as matter of law, or was at least guilty of contributory negligence, because he did not watch the hook and steady it with his guide hook until it came above the deck, as it is claimed his duty was to do. Upon the first point it is enough to say that there was sufficient evidence tending to show that it was customary to raise the empty hook at moderate speed, and there was practically no evidence that the plaintiff had any reason to expect that Alertes would raise it with a jerk or with great rapidity at the time in question. It cannot be said as matter of law that the plaintiff assumed a risk of which he was uninformed and which he had no reason to expect. Upon the second point it is true that there was considerable evidence to the effect that it was the plaintiff’s duty to remain after the whistle blew and watch the hook until it swung clear of the deck, and steady it if swinging; but there was also some evidence to the contrary, and there was no evidence that the plaintiff had ever been told that such was his duty, while, on the contrary, he testified directly that he had never been so informed. We perceive no other ground upon which it could possibly be claimed that plaintiff was guilty of contributory negligence as matter of law.

In. this connection it is said that it was error not to submit the question of assumption of risk to the jury by separate question in the special verdict. This court has held that assumption of risk is a form of contributory negligence; hence a negative answer to the general question covering contributory negligence logically includes also assumption of risk, in the absence of a special question as to that special phase of contributory negligence. Hennesey v. C. & N. W. R. Co. 99 Wis. 109, 74 N. W. 554; Dugal v. Chippewa, Falls, 101 Wis. 533, 77 N. W. 878. No special question was asked, nor instruction presented, on the question of assumption of risk; hence no error can be predicated upon the failure of the court to submit a separate question covering it.

Some complaint is made in appellant’s brief of the unsatisfactory character of the .evidence relied on to show that Mertes was an incompetent and careless hoister; but, as no error is assigned upon any of the rulings admitting such evidence, we are relieved from considering the correctness of the rulings. The broad claim is made, however, that the evidence was insufficient to prove incompetency. The testimony on this point was considerable in volume. It consisted of testimony of various co-laborers to the effect that Mertes frequently jerked the buckets violently; that he would drop the bucket down till it struck hard on the floor of the boat; that at times he ran the carriage off the track; that he dropped coal more than other hoisters by jerking the buckets; that he smoked while on duty, which was against the rules; that he had the reputation of being a careless hoister; and that when the men swore at him on account of his carelessness in handling buckets he laughed at them. There was proof not only of specific instances of carelessness, but also of habits of carelessness and of reputation. Without attempting to state the testimony in detail, it must be sufficient to say that it seems amply sufficient to warrant the finding of the jury on that point. There was also much evidence that his negligent and careless habits were known to the foreman of the dock, who bad supervision of tbe work of tbe boisters and otbei’ employees, witb power to discharge in case of ineompeteney. Notice of ineompeteney to sucb an employee is notice to tbe principal. Baltimore & O. R. Co. v. Henthorne, 13 Fed. 634, 43 U. S. App. 113.

Tbe following instruction, requested by defendant, was-refused,'and error is claimed because of sucb refusal:

“You are instructed tbat if tbe defendant used reasonable care in tbe employment of tbe boister, Mertes, and was satisfied tbat be was a fit and competent man to perform tbe duties-of boister, tire defendant performed bis full duty, and is not liable for a careless act of tbe boister, unless tbe boister, between tbe hiring of -tbe boister and tbe time of tbe accident, became incompetent and tbe defendant bad knowledge thereof.”

There are two answers to this assignment: First, tbe instruction is one touching tbe general question of the liability of tbe defendant, is not applicable to any of tbe questions of fact submitted by tbe special verdict, and hence could not properly be given to tbe jury. Second, it is erroneous because it requires that tbe defendant should have actual knowledge of tbe subsequently acquired ineompeteney of tbe servant, whereas it is sufficient if in tbe exercise of reasonable care tbe defendant should have ascertained tbe fact of sucb incompetency. Kamp v. Coxe Bros. & Co. 122 Wis. 206, 99 N. W. 366.

Tbe court instructed tbe jury that “ordinary care in sucb a case is such care as tbe great mass of mankind would have exercised under tbe same circumstances.” It is claimed that this definition is erroneous because it did not also add the words “engaged in a similar employment.” It seems sufficient to say in answer to this tbat tbe words “under the same circumstances” necessarily include tbe idea of a similar employment. Tbe definition seems sufficiently accurate, under tbe recent case of Pumorlo v. Merrill, 125 Wis. 102, 103 N. W. 464, though it would be more accurate bad it read “sucb care as tbe great mass of mankind ordinarily (or usually) exercise under tbe same or similar circumstances.”

Tbe deposition of James Patton, an officer of tbe defend-' ant company and tbe superintendent of tbe dock, was taken • before tbe trial under tbe provisions of sec. 4096, Stats. 1898, and was received and read in evidence against tbe defendant’s objection, based on tbe ground tbat tbe witness was present in court. It is contended tbat tbis was error under tbe ruling of this court in tbe case of Hughes v. C., St. P., M. & O. R. Co. 122 Wis. 258, 99 N. W. 897. In tbat case tbe depositions of a conductor and engineer of a railroad train, taken under sec. - 4096 as amended by cb. 244, Laws of 1901, were beld not to be admissible wben tbe witnesses were present at tbe trial, on tbe ground tbat they were mere employees, and in no sense parties to tbe action. In Meier v. Paulus, 70 Wis. 165, 35 N. W. 301, it was beld tbat tbe examination of a party to tbe action taken under sec. 4096 was a substitute for tbe old bill-of discovery, and was admissible as original evidence in tbe nar ture of an admission. Since tbat decision tbe section aforesaid has been amended, so tbat in case a private corporation be a party tbe examination of tbe president, secretary, or other principal officer of tbe corporation, or of tbe person wbo was such president, secretary, officer, agent, or employee at tbe time of tbe occurrence of tbe facts which are tbe subject of tbe examination, may be taken under it. In tbe present case tbe examination of Patton was not tbe examination of a mere employee as in tbe Hughes Case, but tbe examination of an officer wbo, under tbe evidence, must be beld to be one of tbe principal officers of tbe corporation. Tbe question is simply as to tbe meaning and intent of jbe statute as amended. Eairly construed, does it make tbe president, secretary, or other principal officer of a corporation in effect a party, so that bis examination becomes independent evidence in tbe case, notwithstanding bis presence in court ? It seems to us quite obvious tbat tbis question must be answered in tbe affirmative. Tbe apparent effort was to give the right to obtain discovery in cases to which a corporation is a party as fully as in cases where an individual is a party. This effort would certainly be defeated if it be held that the examination cannot be read in evidence in case the officer be present in court. Viewing the statute in the light of the defect to be remedied, we think the reasonable construction is that the examination of the officer named becomes the examination of a party, and may be introduced in evidence against the corporation, under the doctrine of the case of Meier v. Paulus, supra.

It is contended that the damages, even as cut down by the trial court, are excessive. The injuries resulting from a fall of nearly thirty feet were necessarily quite severe at the time. Whether there are resulting permanent disabilities was a question in dispute by the experts. The boy was still suffering some ill effects at the time of the trial of the action, more than three months after the accident. We have examined the evidence and do not feel that we can say that the damages finally adjudged are excessive.

By the Court.- — Judgment affirmed.  