
    Horr, Administratrix, Respondent, vs. C. W. Howard Company, Appellant.
    
      October 25
    
    November 14, 1905.
    
    (1) Trial: Province'of judge: Summarizing evidence in charge to jury. (2-5) Master and servant: Defective appliances causing death: Evidence: Special verdict: Instructions to jury: Damages: Arguments of counsel.
    
    1. It is within the province of the trial judge, in his charge, to-summarize and recall to the jury the evidence offered on each side of disputed issues; and where he attempts in good faith to-do this with impartiality and fairness, warning the jury that his statements are not to control them, but that they must decide according to their own memory of all the evidence, his-omissions or misstatements will not constitute error unless his attention is promptly called thereto by counsel.
    2. In an action for death of an employee in a pulp mill caused by the breaking of a steam blowpipe, the evidence is held to sustain findings in a special verdict that the blowpipe was defective and unfit, to the knowledge of defendant’s superintendent, and that such defect was the proximate cause of the injury.
    3. Refusal to submit in the special verdict a separate question as to which part of the blowpipe broke first was not error, the place of breakage being a mere evidentiary fact.
    4. The court charged the jury that if, in answer to the first question. they found the breaking of the blowpipe was a mere accident,, they need go no further, but afterwards instructed them that, in any event, they must answer the last question, as to the amount of the damages. The jury found that the breaking was not mere accident. Held, that the inconsistency in the charge-was not prejudicial error.
    5. In an action for damages by reason of a husband’s death, plaintiff’s counsel in his argument asked the jury to consider the interests of the widow and children. Upon objection the court said: “The jury will take their instructions as to questions of . damages from the court,” and afterwards charged the jury to. allow only for such pecuniary injuries as were suffered by the-widow alone. Meld, that there was no error.
    
    Appeal from a judgment of tbe circuit court for Winnebago county: Geo. W. BubNell, Oireu.it Judge.
    
      Affirmed-
    
    
      Action by widow, as administratrix, to recover ber damages resulting from death of her husband, Austin ITorr, by reason of negligence of defendant, leaving her two infants dependent on her own labor. Deceased, twenty-one years old, was at work in February, 1904, .in attendance upon defendant’s three digesters in.its sulphite mill. The digester is an iron or steel tank, six and one-half feet in diameter by thirty-four feet high, its base being upon the ground floor and its top extending about eighteen inches above the floor of the third story. The tank having been filled with water, acid, and gTOund wood, steam is turned on under a pressure of approximately eighty-five pounds to the square inch, and so continues until the wood pulp, by action of heat and acid, is “cooked.” Thereupon the incoming steam is shut off by a valve operated by a shaft which extended into the third story. That function pertained to the deceased. Thereupon, by similar valve operated by a shaft extending into the second story, the blowpipe, extending from the bottom of the tank to a large wooden tank, is opened and, by the pressure of steam within the tank, the contents are driven through this blowpipe into the blowpit or tank, whence it is removed as needed for drying and rolling into paper. The blow-off pipe upon the digester in question started from near its bottom, the first section of about threo feet in length comprising the valve before spoken of, then a section of pipe, bent somewhat upward, eight feet six inches, in length, and then a third section, three or four feet long, bending again toward the horizontal and passing through a ten-inch timber wall and extending into the blowpit about twelve inches. The sections of pipe were joined together by bolted flanges. Such pipe was cast iron, about ten inches exterior diameter and eight inches interior when new, so that the walls were about one inch thick. The weight of the three sections of pipe is not given, but the -middle eight-foot section weighed about 800 pounds and, inferably, the whole about 1,500 pounds, supported at one end by bolting to the flange of tbe digester, and on tbe other end merely by tbe passage of tbe third section, called tbe “nozzle,” through the wall of tbe blowpit.
    Each digester was blown off from two to four times per day. The rush of tbe woody pulp under high pressure, and accompanied by acid-bearing fluid, bad a wearing effect upon the blow-off pipe, so that the life of such pipes was approximately a year. There was evidence tending to prove that about four weeks before tbe accident the second section of this blow-off pipe had been replaced by a new one, and that at the same time the nozzle, or third section, was found to be worn quite thin, especially at the point on its upper circumference where it bad a bend toward the horizontal. A witness declared that in places it was no more than a quarter of an inch in thickness, while a witness for the defendant testified that at no point was it less than five eighths of an inch thick. There was also evidence tending to prove that for some two weeks before the accident there had been an unusually violent vibration or jar about this pipe, such, indeed, as to shake the whole building, and that upon the morning before the accident extraordinary escape of steam and of the pulp was observed, and that all of these things — the thinness of the nozzle, the extreme agitation of the apparatus, and the leaky condition of the pipe — were called to the attention of tbe superintendent of tbe mill.
    In the forenoon of February 25, 1904, deceased was notified by the operator of an intention to blow off, and, according to his duty and custom, went to the valve shaft in the third floor and turned off the incoming steam and thereupon went •■to a north window open at the top. Thereupon another employee, whose duty it was, went to the valve shaft in the sec•ond floor and opened it for the blow off, whereupon an explosion took place, described by one of the witnesses as very ^violent. Almost momentarily hot steam rushed from the first 'to the third floor, scalding deceased so that he died a couple of days afterwards. After tbe accident tbe blowpipe was found broken in two places, namely, in tbe nozzle piece, near tbe point where it passed through tbe wall of tbe blowpit, approximately at the bend in that pipe above referred to; ■also in tbe second section, about a foot from where it was •flanged onto tbe valve piece. Evidence was offered of tbe extent of pressure to which tbe blow-off pipe was subjected whenever tbe pulp was blown through it, of tbe likelihood of its breaking from excessive vibration, and also from thinness of its walls. Defendant’s superintendent testified to standing within five feet, and to seeing the break occur in the second ■section, and that none occurred in the nozzle until it had pulled out of the'hole in the blowpit wall and fallen over against the iron supports of the digester.
    The jury found by a special verdict (1) that the breaking was not a mere accident; (2) that the blowpipe was defective and unfit for the purpose; (3) that such defect was the proximate cause of the injury to the decedent; (4) that defendant’s superintendent knew of such defect in time to have prevented the accident; (5) that he ought, in the exercise of ordinary care, to have so known; (0) that no negligence of deceased contributed to the injury; and (7) damages $2,500. The defendant moved for a nonsuit and direction of a verdict for itself, and, after verdict, moved to reverse the answers to questions 1, 2, 4, 5, and 6, and to order judgment for the defendant ; also-, if that be refused, that the verdict be set aside and a new trial granted by reason of various errors and for want of evidence to support the verdict. All of these motions were denied, and exceptions duly -reserved, whereupon judgment was entered for the plaintiff, from which the defendant ■appeals.
    Eor the appellant there was a brief by Hoyt, Doe, Umbreit & Oho ell, and oral argument" by Joseph B‘ Doe.
    
    Eor the respondent there was a brief by A. M. Spencer, and oral argument by M. H. Baton.
    
   Dodge, J.

The assignments of error, sixteen in number, may, to much extent, be grouped for purposes of discussion.

There are those which deny sufficiency of the evidence to support the material answers to the special verdict on the subject of the existence and knowledge of defects and their efficacy in causing the injury. After careful examination we are convinced that there was at least some evidence tending to show a defective and leaky condition resulting from, and evinced by, the violent’jarring or vibration of the digester and blowpipe and the escape of steam and pulp. There was also' evidence of dangerous thinness of the nozzle section of the blowpipe; also, that all these were called to the actual knowledge of the superintendent. ITis denials and explanations on these subjects but serve to present a conflict of evidence for the jury. While there is no denial by any eye-witness of the superintendent’s testimony that the explosion or break occurred in the new section of the pipe and not in the nozzle section, his narrative was clouded with such improbability by the undisputed evidence as to the violence of the explosion and instantaneous envelopment of the premises in steam that the jury might, within reason, have deemed it incredible, coming as it did from a witness whose interest was obvious and whose veracity was perhaps impeached by the direct contradiction of his statements on other subjects by several witnesses. No-error was committed in the several rulings sustaining the sufficiency of the evidence to support the verdict.

Another group of errors present the fact that the trial court, in charging the jury upon several of the questions submitted, attempted to summarize, and suggest the tendency of,, the evidence upon both sides. Counsel claims that such practice is erroneous, and that, in so doing, important items of evidence favorable to defendant were omitted, although, with two or three exceptions, he leaves it to us to find out, as best we can, what such items were. In England it was recognized not only as a legitimate province, but a duty, of the trial judge to sum up the evidence, and even to declare Ms opinion upon tlie weiglit and effect thereof, with the explanation that his opinion should not control the jury. One or both of these practices have been forbidden by statute or constitution in some states, but not in Wisconsin, where they seem to have been formerly approved, except in criminal trials. Fowler v. Colton, 1 Pin. 331; Ketchum, v. Ebert, 33 Wis. 611. Undoubtedly the tendency in later years has been averse to any expression of opinion upon the evidence by the trial court, but we need give no consideration to that subject, for nothing of the sort is presented by the record. Throughout the history of our state, trial judges have been in the habit of recalling the evidence to the jury in defining the issues. In ho casé where this has been fairly done has it been held error, though we have often sustained refusals to call attention to. specific items of evidence at request of a party, and pointed out the ■■danger that the fairest attempt to recite evidence would invoke criticism from one party or the other. In two cases where the trial court evidently attempted in good faith to state the evidence, but did so incorrectly, it was held not reversible error, unless appellant called attention promptly to the omission or misstatement. Braunsdorf v. Fellner, 76 Wis. 1, 45 N. W. 97; Muetze v. Tuteur, 77 Wis. 236, 245, 46 N. W. 123. In two other cases the comment on evidence was held error on the ground that it was in effect a partisan argument,so declaring the opinion of the judge without even explaining to the jury their liberty to disregard it that it amounted to a direction to decide a controverted issue of fact in a certain way. Dingman v. State, 48 Wis. 485, 4 N. W. 668; Conway v. Mitchell, 97 Wis. 290, 72 N. W. 752. There can be no •doubt that, after a protracted trial, a fair summarization of the character of the evidence offered on each side of a disputed issue may greatly aid the jury and promote the probability of intelligent consideration and decisión by them. When a trial judge has both the industry and the courage to undertake to so promote tbe cause of justice, we are far from suggesting criticism or disapproval. Tbe attempt is nevertheless accompanied witb danger. A summary of evidence implies omission of some. Tbe judge and tbe advocate are almost sure to differ as to tbe relative importance or cogency of different items. "What tbe former omits as relatively unimportant tbe latter may consider tbe cornerstone of bis position, and it may so appear to an appellate tribunal. Tbis, while suggesting great care to trial judges in any sucb attempt, also justifies tbe bolding tbat tbe variant views of tbe counsel as to tbe importance of omitted evidence must be promptly notified to tbe judge, so tbat be may at least consider it or supply tbe omission if inadvertent.

We bave witb much care canvassed tbe court’s summary upon each question in comparison witb tbe evidence, and are convinced of its entire impartiality and fairness in intent, and mainly in accomplishment. In each instance we find tbe defendant’s side stated witb quite as much amplification and force as tbat of plaintiff — usually witb more. Of course, items of evidence are omitted, but quite as much so against plaintiff as defendant. Tbe court reiterated to tbe jury tbat be would attempt only a statement of salient points in tbe testimony, and tbat sucb statements were not to control them, but tbat they must decide according to their own memory of all' the evidence. ■ If at any point relatively important details of evidence in defendant’s favor were omitted, sucb omission was clearly inadvertent, and appellant must be deemed to bave waived it by silence when be ought to bave called it to tbe attention of tbe trial court. Muetze v. Tutear, supra. We cannot find in these- instructions, so far as exceptions were reserved, any error justifying reversal.

Error is assigned upon a refusal to inquire of tbe jury, by a separate question, which part of tbe blowpipe broke first. Tbis, like many other details, was included in tbe questions submitted as to existence of defects and efficient causation of the injury by those defects. The place of breakage was a merely evidentiary fact, and an answer either way to the requested question would have been inconclusive as to the ultimate question of liability. The fact had not been dignified by allegation and denial in the pleadings. The request called for mere cross-examination of the jury, and was properly refused.

Error is assigned because, upon objection to a remark by plaintiff’s counsel in his argument, asking the jury to consider the interests of the widow and children of deceased, the court merely said:

“The jury will take their instructions as to questions of damages from the court. "When the court gets to it, they will be instructed then as to what damages they will consider.”

It was proper that the jury should consider the fact of the existence and age of children and the increased burden of their support cast on plaintiff by her husband’s death. Abbot v. McCadden, 81 Wis. 563, 51 N. W. 1079. The jury might properly consider the right and consequent “interest” of .these children to such support as relevant to the measure of duty cast upon the plaintiff, though, of course, no pecuniary injury to the children could be recovered. The remarks of counsel were clearly capable of this proper and legitimate meaning. When the court promptly cautioned the jury to observe his instructions as to measure of damages, and then charged them to allow only for such pecuniary injuries as were suffered by the widow alone, we can discover no error in his conduct, nor probability of misleading the jury.

Further error is assigned because the trial court, in charging as to the first question of the special verdict, whether the break of the blowpipe was mere accident, told the jury, if they answered “Yes,” they need go no further — that alone would constitute their verdict. But, when he reached the last question as to damages, he instructed them: “This question you must answer in any event, because you are not supposed to know whether your verdict is for the plaintiff or for the defendant.” While, of course, there was inconsistency between the directions to omit all further consideration if the first question were answered affirmatively and the instruction to answer the last question in any event, it is entirely inconceivable that any prejudice could have resulted. The verdict returned removed the applicability of the first of these directions ; but, even if the condition arose to make it apply, what possible harm could have resulted whether they obeyed or disobeyed the direction to answer the seventh question ? Clearly none.

Other assignments of error are so obviously without foundation that we do not feel justified in devoting either time or space to their statement or discussion. We find no prejudicial error in the record.

By the Gourt. — Judgment affirmed.  