
    Howard, Respondent, vs. Beldenville Lumber Company, Appellant.
    
      May 10
    
    June 21, 1906.
    
    (1) Jurors: Examination: Interest in casualty insurance company. (2) Evidence: Rebuttal: Discretion. (3) Instructions: Failure to define ‘‘l)urden of proof.” (4-7, 9) Special verdict: 'When talcen: Form of questions: Negligence: Proximate cause. (11) General instructions. (8-10, 13) Master and servant: Personal injuries: Dangerous place: Negligence of co-employee: Oourt and jury. (12, 14) Damages. Future suffering: Permanent injury.
    
    1. In an action for personal injuries plaintiffs attorney may examine jurors as to their interest in any casualty insurance company as a basis for challenges; but this should be done only in the ordinary way, by proper questions to the jurors, and not as if anything of a peculiar nature were involved therein. No foundation need be laid for such examination, and it is not necessary or proper to require defendant’s attorney or his nonprofessional assistant to submit to a private examination as to whether he represents any such insurance company concerned in the action.
    2. The trial court has a wide discretion as to whether, after both parties have rested their eases in chief, further evidence shall be confined to such as is strictly rebuttal.
    
      3. Failure to instruct the jury as to tlie meaning of tlie term “burden of proof” is not error where there was no request for such instruction.
    4. Under sec. 2858, Stats. 1898, the court may submit the case for special verdict without request of counsel.
    .5. A special verdict should be composed only of a sufficient number of questions to cover singly the material issues controverted on the evidence, and should be so worded that each question, so far as practicable, shall be susceptible of affirmative or negative answer.
    -'6. The submission in' this case of the general question “Was the defendant guilty of negligence which caused plaintiff’s injury?” is criticised as involving several questions, which should have been separately submitted, as to the existence of the alleged defect and as to whether defendant had known or been chargeable with knowledge thereof for such a length of time that failure to repair it before the accident was negligence.
    7. The submission of four questions as to proximate cause is also criticised on the ground that one, properly worded, would have sufficed, and also because said questions included immaterial matters and matters not in issue and were so framed as to cross-question the jury.
    •8. In an action for injuries to an employee in a sawmill, alleged to have been caused by a piece of wood falling upon him through a hole which the employer had negligently permitted to remain in the floor above, the fact that negligence of a co-employee combined with that of the employer to cause the injury is not a defense.'
    '9. A general question in the special verdict as to whether plaintiff was guilty of contributory negligence is held, sufficiently to have covered the question of his assumption of the risk, in the absence of any request for a specific submission of that matter.
    10. A reasonably safe working place being furnished to a servant when he is put to work, the master’s absolute duty in that regard is satisfied. If thereafter the place becomes unsafe and the servant Is injured by reason thereof before the master has knowledge, or reasonable opportunity to obtain knowledge, of the danger and reasonable opportunity to remove it, the master is not liable.
    11. Where a case is submitted for a special verdict it is error to give general instructions.
    12. In the assessment of damages for future suffering, mental and physical, the jury should be limited by the instructions to such loss in that regard as the evidence satisfies them will be reasonably certain to result from the injury.
    
      13. The question whether plaintiff, an employee in a sawmill, was injured in the manner alleged, by his hand being caught between the belt and rim of a pulley, is held upon the evidence to have been one for the jury. Marshall, J., dissents.
    14. For injuries to a man thirty-one years old, capable of earning $2.50 to $3 per day, resulting in permanent partial paralysis of his right shoulder and that part of the arm near it and total paralysis of the rest of the arm, an award of $8,000 is held not fatally excessive.
    'Appeal from a judgment of the circuit court for Busk county: JoiiN 3L Paeish, Circuit Judge.
    
      Reversed.
    
    Action for personal injuries.
    The claim in the complaint was this: September 2, 1904, plaintiff was an employee of defendant in the latter’s sawmill at Bruce, Wisconsin. The machinery on the main floor of such mill consisted in part of a slab saw which was attended by one person when the mill was operating. Beneath such saw and extending down to within about two feet of the ground floor there was a box construction for directing the'sawdust from such saw to a conveyor running horizontally, nearly, with such floor and about a foot above the same. Passing through the box several feet above such floor there was a shaft, equipped with a pulley, the upper part of which was some feet from the main floor and the lower part some four-feet from 'the ground floor. This pulley was the driver for the slab saw, power being transmitted thereto by a belt. To examine the pulley and belt, as was necessary from time to time, one was required to remove a piece of the box which was fitted for that purpose. In the main floor over where one would necessarily stand in removing the door, so called, of the box so as to expose to view the pulley and belt there was a hole of sufficient size to permit of pieces of wood dropping-through and striking whoever might be in their course. The hole was caused by wear. The work on such floor and the location of the person having charge of the slab saw were such that pieces of wood were quite likely to be pushed over the-brink of tbe bole. Tbis condition of things was well known to tbe defendant prior to tbe occurrence hereafter mentioned. Tbe plaintiff bad no knowledge thereof before such occurrence. On said 2d day of September, 1904, at about 4 o’clock in tbe morning while plaintiff, with due care, was performing bis duty to examine tbe pulley and belt, the door of tbe box having been removed for that purpose, and be was standing with bis right band resting against tbe box, with bis body somewhat bent over to tbe left, in tbe act of looking up into tbe box, be was struck on tbe right arm by a piece of wood which came through tbe bole aforesaid, loosening bis band from tbe box and causing him to fall forward and to make an involuntary ' movement of such band to catch himself, whereby such band or tbe arm was caught between tbe belt and pulley and carried down and around tbe latter, breaking bis shoulder and arm, causing him much pain, and permanently disabling him. He was thirty-one years of age when tbe injury was occasioned. He was in good health and capable of earning $2.50 a day. He has been damaged as a result of bis injuries in tbe sum of $25,000, besides necessary expenses for surgical and medical attendance of $100.
    All allegations as to negligence on tbe part of tbe defendant were put in issue by tbe answer. Also all allegations as to tbe manner in which plaintiff received bis injury and as to tbe amount of bis damages.
    During tbe impaneling of tbe jury plaintiff’s attorney claimed tbe right to interrogate each juror as to whether be was connected in any way with any accident or casualty company, saying that be understood defendant’s attorney represented such a company in tbe action. Exception to such remark was taken by defendant’s attorney, be at tbe same time asserting that be knew of no accident or casualty company being interested in tbe case and that be represented tbe defendant only. Plaintiff’s attorney persisted and requested to have defendant’s attorney sworn and examined on tbe subject. The request was refused, but tbe court interrogated each, juror at length as to whether he was connected with any such insurance company either as a stockholder or policy-holder or as an insurer of his employees or in any other manner. Defendant objected to the examination and duly saved exceptions in respect thereto. After the close of the evidence the court, coun-' sel on both sides, and a Mr. Prince, who was present, apparently associated with the attorney for defendant in some capacity other than that of an attorney, withdrew from the presence of the jury, and the judge then, against the protest of defendant’s counsel, required said Prince to submit to an examination under oath as to whether he represented any accident or casualty company interested in the cause. He testified that he was the adjuster for the Ocean Accident & Guaranty Corporation, and that he supposed the defendant company was paying the expenses of the litigation, but that he had no personal knowledge of the matter or as to whether the insurance company had a policy covering the accident in question; that his company sometimes attended to litigation of that sort where it was not directly interested because of having a policy covering the case.
    The proof offered to support the plaintiff’s claim was in substance this: There was a slab saw on the main mill floor, the sawdust from which was disposed of by passing down through a box underneath the saw to a conveyor near the ground floor. Through this box there was a shaft on which there was a pulley connected with the slab saw as alleged in the complaint. The business of plaintiff was to look after the machinery on the ground floor during the night shift. That required him, from time to time, to examine the condition of such pulley and belt. In doing so he was required to approach the box, step up on an eight-inch timber lying horizontally on the floor between two bridge-tree timbers standing .upright thereon some two or three feet apart and remove the door of the sawdust box, which door was about three feet long. That being clone, and the operative standing upright between the bridge trees and the mill being in operation, the situation was like this: The pulley was twenty-four inches in diameter. Its motion was outward from the upper side. The speed was about 600 revolutions per minute. The belt was about eight inches wide. The top of the operative’s head was about one foot above the top of the pulley. The outer rim of the pulley reached to within about fifteen inches of his body and to within about five inches of the outside of the box, and it filled the box from right to left except about three inches on each side. Some two weeks before the accident a new belt 'was put on because the old one did not run true. The new one was accustomed to run from side to side, somewhat, and to keep it in place a piece of wood was nailed in the box about seven feet from the bottom thereof on the right-hand side. A few moments.before the accident plaintiff finished repairing a belt by which power was transmitted to some machinery on the main floor. Having done so and cleaned up the dirt occasioned thereby he proceeded to look after the belt in the box. He stepped upon the eight-inch timber aforesaid and removed the outside of the box, setting it aside. He then placed his hand on the box at the top of the opening, somewhat to the right, and leaned to the left, turning his head upward sufficiently to enable him to look up into the box where the guide aforesaid was located. While he was in the act of so looking, a piece of wood about eight inches long and two inches square came from above, striking his arm and glancing off to and striking his face. Instantly thereupon his hand was released from the box and he fell forward, the motion of his arm being such that it or the hand was caught between the pulley and the belt and whirled around the former till it was released. As his hand and arm were so carried partly around the pulley his body with great force was jerked forward against the outside of the box, his face striking the left-hand edge thereof, and his arm was twisted and broken and so strained as to permanently destroy its usefulness. On occasions prior to tbe injury when he had opened the box and examined the belt and pulley he had not observed any hole in the floor above. There was such a hole, the same being where the person who tended the slab saw was required to stand. It was about ten inches square. When the stick of wood fell to the floor he looked •at it and so was able to tell about its size. He also looked up to see where it came from and observed the hole. He could not say just how his hand or arm was caught or released, but thought the hand came down on top of the pulley and went around to the place where it was released by the belt leaving the pulley. The hand was injured somewhat. It went in and out very quickly. He said:
    
      “I should judge that it [the hand] passed down and away from me up to where the belt left the pulley on the farther side. I don’t know for certain whether my hand went clear •around or not, or whether it slipped out before it got clear .around. I know there was a mark on the back of my hand where it was skinned.”
    As corroboration the person who operated the slab saw testified to there being a hole in the floor through which a piece •of wood might have fallen' and struck the plaintiff. He said the hole was caused by a wearing out of the floor; that it had been there some time; that he had to exercise care to avoid •stepping into it; that several times he had called attention thereto in order to have it fixed, and that he was accustomed to cover it with loose lumber or slabs. Plaintiff testified that he walked around some, outside of the mill, after he was injured; that after a while he met one of the employees, who took him into the engine room, where he soon became unconscious, and in that condition was taken home. He did not say to any one before being taken from the mill or thereafter, except as hereafter indicated, that he was injured while examining the belt in the box, until he' made such claim in the action. He testified that he never told any person connected with defendant bow lie was injured. 'He admitted having said to ■one of defendant’s officers that there was a belt off; that it took him quite a while to put it on because he had to lace it; that after he did that he walked into the engine room and then -out and around and just then got hurt.
    On behalf of defendant there was evidence to the effect that ■about three months after the accident plaintiff and his wife signed a written statement that the injury was caused while he was attempting to put on a belt; that his arm was caught thereby, throwing him to the floor, and that he could not tell just how it was done. They testified that a man visited them and discussed the question of their expenses and appeared to write down what they said in that regard; that they read the paper; that the man then laid it with others on the table .and asked them to sign, which they did, supposing they were signing the paper they had read; that they made no such statement to the man as the one contained in the paper in fact signed and produced upon the trial. There was testimony by the secretary and treasurer of the defendant that some two weeks after the accident plaintiff visited defendant’s office and there said he did not know how the accident occurred ; that he did not blame any one; that he fixed a belt, then went over by the box and was injured there. Mr. Stewart, the foreman of the mill, testified that before the plaintiff was taken from the mill he said he did not know how he was injured, and later at his home, when he was apparently in good condition to relate the facts, that he said he could not tell the first thing about the matter. The witness further testified that it was the spring after the injury before he knew of any claim that the injtoy occurred at the 'box under the slab saw; that he went into the basement of ■the mill after the accident and found no indication of there having been any disturbance there except that the belt was •off of the .big conveyor some thirty feet from the slab-saw box. 'The defendant’s bookkeeper, who was present when .the plaintiff made tbe statement to tbe president in tbe office,, corroborated it. Tbe person wbo bad tbe same work to do-as plaintiff on tbe day shift testified tbat wben be came on, after tbe accident, be found everything in order on tbe ground floor; tbat about a month after tbe accident plaintiff told him be did not know bow be got hurt; tbat tbe witness often took off tbe door of tbe box under tbe slab saw and examined tbe operation of tbe belt, looking up as plaintiff testified be did, but never observed any bole in tbe floor above.
    Plaintiff on rebuttal denied in detail tbe testimony off each of tbe witnesses as regards bis having said be did not. know bow bis injury occurred.
    At tbe close of tbe evidence tbe defendant moved tbe court for a verdict which was denied. Tbe court then sent tbe case to the jury for a special verdict on its own motion. There were exceptions to instructions given and refused,, which will be referred to, as far as. may be necessary, in tbe opinion. Tbe jurors found as facts, in substance:
    1. Plaintiff was injured while on duty in defendant’s mill, by contact with tbe machinery therein.
    2. Plaintiff was injured by negligence which was tbe proximate cause of such injury.
    3. Such injury was not produced by negligence of a co-employee.
    4. Defendant’s alleged negligence was tbe proximate cause of tbe injury.
    5. Tbe injury was not caused by concurrent negligence-of defendant and tbe fellow-servant of tbe plaintiff.
    6. Plaintiff was not guilty of any contributory negligence.
    
      1. Eight thousand dollars will be required to compensate plaintiff for bis injury.
    Such motions were made and exceptions saved to rulings-thereon as were necessary to preserve for consideration questions discussed in tbe opinion. Judgment was rendered in-plaintiff’s favor on tbe verdict, and defendant appealed.
    
      Nor tbe appellant there was a brief by Morton Barrows and L. B. McGill, and oral argument by Mr. Barrows and. Mr. 8. L. Perrin.
    
    Eor tbe respondent there was a briéf by Samuel A. Anderson and W. H. Stafford, and oral argument by Mr. Anderson.
    
   Maeshall, J.

Tbe proceedings which occurred during the impaneling of the jury and at the close of the evidence, in regard to whether any casualty insurance company was interested in the litigation, merit criticism. Whether, under the circumstances, they should be regarded, of themselves, as prejudicially erroneous, is questionable and need not be decided. It may be otherwise, though, if so, they come very dangerously near that line.

Very much of the criticism, indulged in as to a tendency of jurors in cases of this sort of deciding issues from biased views, suggests rather faulty administration than inherent weakness in the jury system. It is firmly believed that by careful attention, from the beginning to the end of a jury trial, to protect the jury from all ulterior influences and to carefully avoid useless colloquies between court and counsel having a suggestive tendency as to the nonprofessional hearers, regarding the mental leanings of the court either as regards the particular case or similar controversies, and such attention by manner and speech, so far as practicable, to persuade the jury up to the ideal plane of absolute impartiality necessary to a decision of the controversy in hand, entirely uninfluenced by anything except the evidence produced before them and the law as given by the court, the results will continue in the future, as in the past, to vindicate the truth of the saying that the safest tribunal that has been or probably can be created to decide mere issues of fact, is a carefully impaneled jury of twelve men. From our own experience as trial judges, we are utterly unable to appreciate the frequent suggestions made that a defendant in a ease of this sort, or one where an insurance company defends, cannot, by reason of inherent weakness in the system, obtain justice at the hands of a jury.

The difficulty with the criticised proceedings is attributable to the attitude of all concerned in examining the jury on the voir dire. Counsel for plaintiff said:

“I don’t know if this is the proper time and place to mention anything with reference to the fact of a casualty insurance company being interested in this case.”

That was the initial mistake. There was no necessity for mentioning any such thing to the court or in the presence of the court other than by proper questions propounded to jurors. That first mistake was followed by a long colloquy between court and counsel, on both sides, as to the propriety of examining the jury respecting whether they were interested in any casualty company concerned in the litigation and as to whether the attorney who appeared for the defendant represented such a company, during which plaintiff’s attorney was accused by defendant’s attorney of endeavoring to prejudice the jury, and the latter, protesting innocence in that regard, asked leave to examine under oath defendant’s attorney as well as a Mr. Prince, who appeared to be the latter’s nonprofessional assistant, on the subject of discussion, ending with a suggestion by the judge that he would inquire into that later, and then himself taking up the matter of examining the jurors on such subject, which he did fully. Such proceedings, manifestly, are not well calculated to promote the attainment of justice. Just as clearly they have a tendency to create impressions in the minds of jurors prejudicial to the proper consideration of the case in hand.

If counsel for plaintiff had proceeded, without any announcement to the court, to ask the jurors as to whether they were directly or indirectly concerned in any casualty insurance.company, as a basis, if one existed, for challenges to the favor or peremptory challenges, be would have been strictly within his right. There was no more necessity for the supposed preliminaries than there would be for a foundation for interrogating a juror as to whether he is a relative of any party to the litigation, or to either of the attorneys engaged therein, or interested directly or indirectly with any such party or attorney in business, or with reference to any other of numerous matters that might be suggested. It was the announcement by counsel, as if something of a peculiar nature was involved in the examination he proposed entering-upon, the attitude of the court with reference thereto and the whole proceedings, suggestive of such matter being specially out of the ordinary, and of the existence of a secret interest behind the litigation, putting the defendant in the position of falsely and secretly pretending to be the real party in interest — which was liable to work mischief. Quite similar-proceedings took place in Chybowski v. Bucyrus Co. 127 Wis. 332, 106 N. W. 833. There counsel for defendant was required by the court to disclose under oath whether he represented an insurance company concerned in the litigation. That was condemned, it being said:

“The mere fact that an insurance company was concerned in the litigation was wholly immaterial. The attitude of the court as to compelling appellant’s counsel to bear evidence in respect thereto, notwithstanding the assurance of respondent’s counsel that the information sought for was wanted only as a basis for interrogating the jury, clearly gave-undue importance to the insurance company’s connection ■with the case, since no such basis was necessary. It was a matter quite likely to prejudice the jury and should not have been adverted to at all except by questions to the particular-juror under examination and ‘strictly within the right’ to discover whether any bias or basis therefor on his part existed.”

The procedure in this case did not go quite so far, in the-presence of the jury, as in the one quoted from, so we feel justified, here, in stopping short of condemning the same as sufficiently prejudicial, by itself, to work a reversal. Why the proceedings were taken, which occurred after the close of the evidence, of counsel and the court retiring from the presence of the jury and requiring the nonprofcssional assistant of appellant’s counsel to be sworn and, examined as to whether he represented any casualty insurance company con•cerned in the litigation, we are wholly unable to understand. Certainly, if they had to occur, the trial court is to be commended for having retired for the time being from the presence of the jury. It seems that the mainspring of the several steps, including the last, was the notion that some basis for the examination of the jurors on the particular subject was necessary to be affirmatively laid, including some showing of good faith on the part of counsel for the plaintiff. 'That was all wrong. No such basis was required, as before indicated, any more for the purpose of inquiring into such particular matter than for inquiring into any other, necessary, in the judgment of counsel, acting reasonably, to en.able him to perform his professional duty in selecting a jury. He should have simply asked fair questions in regard to the subject, and in case of an objection being made it should have been promptly overruled. . This subject has been sufficiently treated here in Faber v. C. Reiss C. Co. 124 Wis. 554, 102 N. W. 1049, and Chybowshi v. Bucyrus Co. 127 Wis. 332, to warrant omitting to pursue it further. We have discussed the same at considerable length because it seems, from this and the two other instances where we have recently been called upon to deal with the subject, that some pretty definite statement as to the proper conduct of judicial administration 'in respect to the matter is required.

Complaint is made thát evidence was permitted on rebuttal which was really cumulative. .Courts have a pretty wide discretion as to whether after a party has rested in chief and the opposite party shall have made his case the former shall be restricted, as to further evidence, to such as is strictly rebuttal. The better practice is to direct the trial along the lines of regular order unless there is a fairly good reason for departing therefrom. We are unable to say that there was any inexcusable departure from such order in this case.

Further complaint is made because, the court failed to instruct the jury as to the meaning of the term burden of proof. There does not seem to have been any request for instructions on that line, therefore harmful error cannot be predicated on failure to do so. Seyring v. Eschweiler, 85 Wis. 117, 55 N. W. 164; Lueck v. Heisler, 87 Wis. 644, 58 N. W. 1101; Kock v. Ashland, 88 Wis. 603, 60 N. W. 990; Odette v. State, 90 Wis. 258, 62 N. W. 1054. No error was -committed by submitting the case to the jury for a special verdict without request by counsel. The statute expressly authorizes such submissions. Sec. 2858, Stats. 1898.

Several assignments of error are presented for consideration as to questions contained in special verdict. It does not seem advisable to consider them in detail, though we will do so,in a general way. The verdict as framed by the learned court cannot well be considered a safe model to be followed. However, generally speaking, it covered the case, •confused though it was with some unnecessary questions, and faulty in not containing questions covering clearly the precise matters of fact in controversy on the evidence. This court has said so many times that a special verdict should be composed only of a sufficient number of questions to cover singly the issues raised by the pleadings, material to the case and controverted on the evidence, so worded that each question, so far as practicable, shall be susceptible of affirmative •or negative answer, that nothing can be gained, it seems, by a repetition in that regard. Strict attention to this matter is a judicial duty.

Here, there was no dispute but what the respondent was injured at the time alleged in the complaint. No question on that point, therefore, was needed. The only negligence pleaded was failure on the part of defendant to seasonably repair a wornout condition of the main mill floor. That, at the most, required these questions: (a) Was there a hole in the mill floor as alleged ? (b) If there was such a hole, did the defendant know thereof a sufficient length of time before the accident, by the exercise of ordinary care, to repair the same before such time? (c) If there was such a hole, had it existed for such length of time before the accident that defendant, in the exercise of ordinary care, should have discovered and repaired the same before such time ? An affirmative answer to the first and to either of the others would have established the negligence complained of as a matter of law.

It will readily be observed that the matters covered by the suggested questions were distinctly pleaded as the ground of 'negligence relied on and were distinctly put in issue by the answer and were clearly controverted on the evidence. The trial court’s question: “Was the defendant guilty of negligence which caused plaintiff’s said injury ?” was in legal effect the three suggested questions combined. That is not the manner the special-verdict statute contemplates that such matters shall be submitted to a jury, 'though under proper instructions such method has not been condemned as fatally erroneous. However, we may well say in passing, trial courts should not feel at liberty to commit all errors which have been or may be held not fatal to the result which may finally be reached.

The next issue of fact in order was whether the existence of the hole in the floor, if one did exist as alleged, was the proximate cause of the plaintiff’s injury. On that a question should have been submitted about like this: If you answer the first question and either the second or third in the affirmative, were such'facts the proximate cause of plaintiff’s injury? That would have sufficed for these four questions wbicb tbe learned court submitted: (a) “Was tbe defendant guilty of negligence wbicb caused plaintiff’s said injury?” (b) “Was plaintiff’s said injury produced by reason of negligence of bis co-employee, Hanson?” (c) “Was defendant’s alleged negligence tbe proximate cause of plaintiff’s said injury?” (d) “Was plaintiff’s said injury caused by tbe combined negligence of defendant and that of tbe plaintiff’s co-employee, Hanson?” There was no issue on tbe pleadings or tbe evidence warranting tbe questions designated as (b) and (d). Moreover, whether tbe injury was caused by tbe combined negligence of tbe defendant and bis co-employee, Hanson, if there bad been such an issue in tbe case, wbicb there was not, was entirely immaterial since such mere contributory negligence of a co-employee is not a defense in a case of this sort. Jones v. Florence M. Co. 66 Wis. 268, 284, 28 N. W. 207; Paulmier v. Erie R. Co. 34 N. J. Law, 161; Franklin v. W. & St. P. R. Co. 37 Minn. 409, 34 N. W. 898; Hunn v. Mich. Cent. R. Co. 78 Mich. 513, 44 N. W. 502; Beach, Contrib. Neg. § 305. So by submitting tbe four questions instead of tbe one, tbe rule was violated that immaterial matters should not be included in a special verdict; also tbe rule was violated that questions should not be so framed as to cross-question tbe jury, and tbe further rule was violated that no question should be included in a special verdict not covering a distinct issuable controverted fact.

Complaint is made because of failure to submit a question covering tbe subject of assumption of risk. There are two answers to that: (1) There was no such issue in tbe case either by tbe pleadings or on tbe evidence. (2) Tbe general question on tbe subject of contributory negligence sufficiently covered tbe form of such negligence called assumption of tbe risk in tbe absence of any request for a particular submission of such matter. Hennesey v. C. & N. W. R. Co. 99 Wis. 109, 74 N. W. 554.

Tbe court said to tbe jury: “You are instructed that it was tbe duty of tbe defendant to provide a place tbat was reasonably safe for tbe plaintiff to do bis work in while in tbe exercise of ordinary care,” and gave further instructions in connection therewith, well calculated to impress upon tbe minds of tbe jurors tbe idea tbat such rule applies, not only to tbe time tbe working place is originally furnished to tbe servant, but to every instant of time thereafter during tbe period of bis employment. Tbat was very misleading.

True, it is tbe duty of tbe master to furnish tbe servant with a reasonably safe place in which to work. True, tbat duty is absolute. It cannot be delegated by tbe master. It cannot be performed by him by merely exercising ordinary care to furnish such place. It is satisfied only by tbe actual furnishing thereof. But tbat refers to the time when tbe servant is put to work, not to every time when, thereafter, in tbe course of continuous employment, at tbe customary intervals, be re-occupies bis place, nor to every instant of time during tbe period of bis employment. A reasonably safe working place having been furnished tbe servant, tbe absolute duty in tbat regard is satisfied. Then becomes active tbe secondary duty to exercise ordinary care to preserve for tbe servant tbe reasonably safe condition of bis working place. In case of its becoming unsafe during tbe course of bis employment, ánd tbe servant receiving an injury thereby before tbe master has knowledge of tbe existence of tbe danger or has reasonable opportunity to obtain such knowledge, and reasonable opportunity to remedy tbe danger, be is not liable. Hulehan v. G. B., W. & St. P. R. Co. 68 Wis. 520, 32 N. W. 529; Paine v. Eastern R. Co. 91 Wis. 340, 346, 64 N. W. 1005; Quincy C. Co. v. Hood, 77 Ill. 68; Baldwin v. St. L., K. & N. R. Co. 68 Iowa, 37, 25 N. W. 918; Stapf v. V. Loewer’s G. B. Co. 1 App. Div. 405, 37 N. Y. Supp. 256; Artis v. Buffalo, R. & P. R. Co. 3 App. Div. 1, 37 N. Y. Supp. 977, 38 N. Y. Supp. 42; Park Hotel Co. v. Lockhart, 59 Ark. 465, 28 S. W. 23; Wabash, St. L. & P. R. Co. v. Locke, 112 Ind. 404, 14 N. E. 391; St. Louis, Ft. S. & W. R. Co. v. Irwin, 37 Kan. 701, 16 Pac. 146; Mickee v. Walter A. Wood M. & R. M. Co. 77 Hun, 559, 28 N. Y. Supp. 918; Haskins v. N. Y. Cent. & H. R. R. Co. 79 Hun, 159, 29 N. Y. Supp. 274; Binns v. R. & D. R. Co. 88 Va. 891, 14 S. E. 701; 20 Am. & Eng. Ency. of Law (2d ed.) 92, 93, and cases cited in tbe note.

Tbe courts bave spoken thus decisively on tbe subject last discussed:

“It was incumbent on tbe plaintiff to show affirmatively tbat at tbe time tbe accident happened” tbe condition of the track “was either known to tbe company or bad existed for such length of time before tbe accident as to constitute notice to tbe company tbat tbe track was in an unsafe condition at tbat place.” This court speaking by Taylor, J., in Hulehan v. G. B., W. & St. P. R. Co. 68 Wis. 520, 525.
“Tbe duty to provide a reasonably safe place for tbe employee to perform bis service in rests upon tbe master, and tbat duty is one tbat cannot be shifted or evaded by any attempt to delegate it.” “This duty is also a continuing one to tbe extent tbat tbe master must provide reasonably for tbe inspection and if need be for tbe repair of premises and appliances.” MONTGOMERY, J., in Anderson v. Mich. Cent. R. Co. 107 Mich. 591, 65 N. W. 585.
“Tbe doctrine tbat tbe master must provide a safe place has no application to tbe case where tbe place becomes unsafe during tbe progress of tbe work.” McClain, J., in Oleson v. Maple Grove C. &. M. Co. 115 Iowa, 74, 87 N. W. 736.

Tbe language of this court by Mr. Justice Winslow in Paine v. Eastern R. Co. 91 Wis. 340, is quite as decisive.

In submitting tbe subject of proximate cause to tbe jury tbe learned court used the term “approximate,” both in tbe questions for tbe special verdict and tbe instructions. In this case probably tbe misuse of terms was not harmful since tbe court gave as an explanation of what was called “approximate cause” a fairly accurate definition of proximate cause.

Quite inexcusable error was committed, we feel called upon to say, iu view of the many recent decisions of this-court on the subject, in that the court while submitting the case to the jury for a special verdict gave at considerable length general instructions. Such instructions, as has often been said, are wholly unsuitable in case of a special verdict.. It may be that it was supposed by the learned court that since the verdict was required upon the court’s own motion, instead of in response to the demand of counsel, a different rule would apply than the one so many times emphatically proclaimed by this court. If so, the supposition was baseless. There is no reason for the instructions to be specifically directed to the special questions in case of a special verdict, when required by counsel, that does not apply, just as strongly, when it is otherwise required. This court has held upon due consideration of the matter that in case of such a verdict the parties to the litigation are entitled, as a matter of statutory right, to have the jury instructed as to-the particular questions submitted, and not generally at all. Lyon v. Grand Rapids, 121 Wis. 609, 99 N. W. 311; Van de Bogart v. M. & M. P. Co. 127 Wis. 104, 106 N. W. 805; Schneider v. C., M. & St. P. R. Co. 99 Wis. 378, 388, 75 N. W. 169; Ward v. C., M. & St. P. R. Co. 102 Wis. 215, 219, 78 N. W. 442; New Home S. M. Co. v. Simon, 104 Wis. 120, 80 N. W. 71; Brunette v. Gagen, 106 Wis. 618, 82 N. W. 564; Rhyner v. Menasha, 107 Wis. 201, 206, 83 N. W. 303; Sladky v. Marinette L. Co. 107 Wis. 250, 259, 83 N. W. 514; Musbach v. Wis. C. Co. 108 Wis. 57, 84 N. W. 36; Bartlett v. Collins, 109 Wis. 477, 85 N. W. 703; Mauch v. Hartford, 1-12 Wis. 40, 87 N. W. 816; Byington v. Merrill, 112 Wis. 211, 88 N. W. 26; Cullen v. Hanisch, 114 Wis. 24, 37, 89 N. W. 900; Okonski v. Pa. & O. F. Co. 114 Wis. 448, 457, 90 N. W. 429; Gutzman v. Clancy, 114 Wis. 589, 90 N. W. 1081.

This instruction was given to the jury on the subject of damages: “Tou will also assess all such sums as you are satisfied from evidence will recompense bim for all future suffering, both, mental and physical.” That was prejudi-cially erroneous. The jury should have been limited in assessing damages for future suffering, mental and physical, to such loss, in that regard, as the evidence satisfied them would be reasonably certain to result from the injury. White v. Milwaukee C. R. Co. 61 Wis. 536, 21 N. W. 524; Hardy v. Milwaukee St. R. Co. 89 Wis. 183, 187, 61 N. W. 771; Block v. Milwaukee St. R. Co. 89 Wis. 371, 380, 61 N. W. 1101; Raymond v. Keseberg, 91 Wis. 191, 64 N. W. 861; Groundwater v. Washington, 92 Wis. 56, 61, 65 N. W. 871; Kliegel v. Aitken, 94 Wis. 432, 438, 69 N. W. 67; Collins v. Janesville, 99 Wis. 464, 465, 75 N. W. 88; Boelter v. Ross L. Co. 103 Wis. 324, 330, 79 N. W. 243.

Error is assigned, raising the question as to whether the evidence presented a fair jury question regarding whether respondent received his injury in the manner he claimed he did. A careful study of the record has resulted in some hesitation in reaching a satisfactory conclusion in respect thereto. It certainly seems quite improbable that one could have his hand caught between the belt and rim of a- heavy iron pulley, twenty-four inches in diameter and eight inches on the face, revolving at the rate of 600 revolutions per minute or sixty feet per second, the sides of the pulley being within three inches of the sides of a box inclosing it, and that the arm could be carried down and around the pulley to a point of release, dragging it necessarily in between the sides of the pulley and the sides of the box, and forcibly jerking the body forward, without much more disastrous consequences than occurred in this case. To the majority, but not all, of the members of the court the respondent’s story does not seem wholly improbable. Again, the almost overwhelming evidence that the respondent stated, on numerous occasions after he was injured, that he did not know how the injury occurred; that the story told upon the trial was not known, to any one, so far as appears, till tbe action was commenced, and two apparently credible witnesses examined tbe condition of things at and in tbe vicinity of tbe alleged scene of injury shortly after tbe accident and found all in order, while, if respondent’s testimony be true, tbe door of tbe sawdust box must have been left down from tbe time of tbe accident till some one other than himself replaced it, and still other circumstances that might be referred to, involving tbe matter in doubt, lead to tbe conclusion, on tbe part, at least, of tbe writer, that tbe evidence, as a whole, did not remove tbe question of bow tbe accident occurred from tbe realms of mere conjecture and so did not present a fair jury question under tbe rule laid down in Hyer v. Janesville, 101 Wis. 371, 77 N. W. 729. However, by far tbe prevailing opinion is that tbe respondent’s positive story of bow bis injury was received was not so incrediblé but what it was permissible for tbe jury to believe it and to base a verdict thereon. That rules tbe case on that subject in bis favor, so tbe decision must be and is that tbe question in relation thereto was properly submitted to tbe jury.

Further complaint is made that tbe damages assessed aro grossly excessive. Tbe man was thirty-one years of age when be was injured. ITe was capable of earning $2.50 to $3 per day. He was not a common laborer, but an engineer. Tbe evidence was to tbe effect that bis arm near tbe shoulder and tbe shoulder were partially paralyzed and that tbe balance of tbe arm was totally so; that tbe motor and sensor nerves were destroyed beyond any reasonable expectation of restoration, leaving bis arm practically a dead body: an incumbrance. Tbe evidence tended to if it did not conclusively show that such condition would not materially change for tbe better. Manifestly from such evidence the respondent’s injury was a very serious one. It was much more so than tbe mere loss of an arm would be. Tbe circumstance also is quite material that tbe injured member was the right arm.- A careful examination of the precedents satisfies us that we would not be- justified in condemning the verdict as fatally excessive, though doubtless it approached dangerously near the border line thereof, notwithstanding, as indicated, the injury was a very severe one.

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