Opinion
November 29, 1962 —
January 8, 1963.
APPEAL from a judgment of the circuit court for Ozaukee county: MILTON L. MEISTER, Circuit Judge. Reversed.
For the appellant there were briefs by Gerold Huiras of Port Washington, and Ralph E. Houseman of Grafton, and oral argument by Mr. Ralph J. Huiras and Mr. Houseman.
For the respondent there was a brief and oral argument by Richard C. Bonner of Grafton.
This is the second appeal of this case which involves a cause of action brought by Sachse, appellant, against his employer Mayer, respondent, for personal injuries arising from the latter's negligence. In the first appeal, Sachse v. Mayer (1957), 1 Wis.2d 506, 85 N.W.2d 485, brought by Mayer, this court affirmed an order of the trial court denying a motion for summary judgment because it appeared that there was an issue of fact which required a trial. Trial to a jury was held. The jury found by special verdict that the employer, Mayer, was liable in damages to the employee, Sachse, but on motions after verdict the trial court denied Sachse's motion for judgment on the verdict, ordered judgment for Mayer notwithstanding the verdict, and dismissed the complaint. From this judgment the plaintiff appeals.
The accident in question, by which appellant sustained personal injuries, occurred on December 28, 1954, when appellant climbed a tree with a power chain saw to cut the top off a dead tree. When he reached a point five feet from the ground the saw stopped. Appellant handed the saw to another employee, Don Steward, who was helping him; Steward started the saw and handed it back to appellant who continued on up the tree with the saw. After reaching a point 14 feet from the ground appellant started to saw, but the saw gave a kick causing appellant to lose his balance. He fell from this height to the ground and sustained serious personal injuries.
The facts brought out by the testimony during the trial are that appellant Sachse was a domestic servant employed by respondent Mayer. His work consisted of shoveling the walks, mowing the lawn, carrying firewood, polishing respondent's shoes, and being a general handyman about respondent's premises. He had worked for respondent for about eight years, the first five years part time, the last three years full time. At the time of the injury appellant was nineteen years of age, fully developed physically, six feet tail, and weighed about 190 pounds. He had graduated from high school and was married.
About three years before the accident, prior to purchasing the power saw, respondent instructed appellant on its use. The instructions and explanations regarding the power saw were confined to sawing dead timber on the ground. Between the time the saw was acquired and the date of the injury appellant had used the saw in question approximately one hundred times and had spent fifty hours "cleaning out the woods." While cleaning out the woods appellant never climbed any trees nor did he ever climb any trees while using this power saw, nor was he ordered to climb a tree this time or to use the power saw while up a tree.
During the month of September, 1954, respondent prepared a list of work for appellant. One of the items on this list was "Clean Out Woods." Appellant testified that to clean out woods meant that he was to cut all deadwood that was in the woods.
On the day in question appellant took the power saw into the woods and proceeded to cut certain wood lying on the ground; then he noticed a tree wedged between three other trees which was standing at a 45-degree angle. He testified he had never climbed up into a tree with the power saw before nor had respondent ever authorized him to go up into a tree and use the saw. He also stated that the decision to climb the tree was his own independent decision and that he was aware that the saw was a dangerous piece of machinery if not handled properly. He was not ordered nor instructed to climb the tree by respondent or Steward. He climbed the tree in order for the work to go faster.
During the three years he had used the saw he never asked respondent to provide him with any safeguards for the use of the saw or appliances which would make the job safer. Respondent did not furnish him with any particular safety device for this type of job, such as a safety belt, but appellant did not ask respondent to provide one for him.
Appellant testified Mayer did not know he was going up into the tree that day and that Mayer was not on the premises that day. Appellant stated he did not give respondent an opportunity to provide him with adequate instructions or an opportunity to provide him with a safety belt or a safeguard.
At the close of all the testimony respondent moved for a directed verdict, and the trial court stated:
"I have therefore determined that, even though I feet that this is a case where the court should grant the defendant's motion for a directed verdict, I will submit a special verdict to the jury for their consideration. — I will say that it is not solely because of the seriousness of the injuries that the court has determined to submit this matter to the jury, but there is the other factor which I have mentioned that this case has been in the court for a long time and that this case and a companion case have twice been before the supreme court. I feel that for that reason the factual situation should be presented to a jury . . ."
The jury determined by special verdict that the order of the respondent to clean out the woods could reasonably be interpreted to include the operation appellant was attempting to perform and that respondent should have anticipated appellant might use the power saw in this operation. The jury found respondent was causally negligent in failing to warn appellant of the dangers accompanying the use of the power saw while in a tree. The jury also found appellant negligent in failing to advise respondent he was going to use the saw while up in a tree; however, this negligence was found not to be causal. It found he was not negligent in the manner in which he attempted to use the power saw and he did not assume any risk of injury. The jury awarded appellant $50,000 for pain, suffering, and disability, and $10,000 for future medical and hospital expenses, in addition to $2,088 as damages answered by the court pursuant to stipulation.
The trial court held that after a careful review of the evidence it was unable to find any causal negligence on the part of respondent. It also held that if it had not granted respondent's motion notwithstanding the verdict, it would have granted a new trial because of the prejudice of the jury and because of the interest of justice.
Further facts will be given in the opinion.
Appellant submits that by the opinion in Sachse v. Mayer, supra, we determined that Mayer was causally negligent as a matter of law. We are unable to agree with appellant. In that case we held, only, that an issue was presented for determination by the trier of the fact, and such issue was whether Sachse might or might not reasonably understand that Mayer's order "to clean out the woods" included the operation which Sachse was undertaking when he was hurt. By its verdict the jury found that Sachse might so understand it and, therefore, Sachse was injured in the course of his employment.
In our former opinion we expressly recognized that such a jury finding might raise other questions but we refrained from consideration of any of them. Our previous decision does not foreclose the parties in raising or in attempting to resolve the other issues so raised.
Those questions, as answered by the jury, resulted as follows: Mayer should have anticipated that Sachse might use the power saw when he was up a tree and Mayer was causally negligent in not warning Sachse against the danger of doing so. (The trial court changed this answer, stating that there was no evidence to support the causation part of the finding.) The jury also found that Sachse was negligent in not telling Mayer that he planned to use the power saw while he was up in the tree but that such negligence was not causal, and that Sachse was not negligent in the manner in which he attempted to use the power saw. Thereby, the jury absolved Sachse of all causal negligence and attributed 100 percent thereof to Mayer.
On stipulation by the parties the trial court found $2,088 as the cost of the past medical services incurred by Sachse. The jury awarded $50,000 for pain, suffering, and disability, and $10,000 for future medical and hospital expense. No proof was offered in support of the $10,000, as the learned trial court said in its memorandum decision.
The verdict contained a question on the assumption of risk by Sachse. We consider the safe-place statute, sec. 101.06, applies to the facts and circumstances of this accident, and assumption of risk is not properly in this case. That defense was abolished in safe-place cases by Rosholt v. Worden-Allen Co. (1913), 155 Wis. 168, 178, 144 N.W. 650, and Mennetti v. West Side Businessmen's Asso. (1945), 246 Wis. 586, 591, 18 N.W.2d 487. However, the inclusion of the question in the verdict did not prejudice the plaintiff because the jury answered that the risk was not assumed. Both question and answer are disregarded now.
Although appellant was protected by the safe-place law he still had the duty to exercise reasonable care for his own safety, and if he failed to do so he is guilty of contributory negligence. Filipiak v. Plombon (1962), 15 Wis.2d 484, 489, 113 N.W.2d 365. See Neitzke v. Kraft-Phenix Dairies, Inc. (1934), 214 Wis. 441, 448, 253 N.W. 579; Paluch v. Baldwin Plywood Veneer Co. (1957), 1 Wis.2d 427, 435, 85 N.W.2d 373; Vogelsburg v. Mason Hanger Co. (1947), 250 Wis. 242, 246, 26 N.W.2d 678. See also Klein v. Montgomery Ward Co. (1953), 263 Wis. 317, 321, 57 N.W.2d 188; Gupton v. Wauwatosa (1960), 9 Wis.2d 217, 224a, 101 N.W.2d 104, 102 N.W.2d 401; and Deaton v. Unit Crane Shovel Corp. (1953), 265 Wis. 349, 354, 61 N.W.2d 552.
The jury found that Sachse was not negligent in the manner in which he attempted to use the power saw. As a matter of law, the attempt to climb the tree while the saw was running and then to saw off the top of the tree, which required him to use both hands in guiding the saw into the cut until the saw was about two inches deep, during which he employed no safeguards against failing, was causal negligence to a very serious extent. It could well be found that Sachse's causal negligence contributed to the accident in excess of anything which the record will support to sustain the finding of causal negligence on the part of Mayer. Although the jury could, and did, find that Mayer's order "to clean out the woods" could be construed as including this task by Sachse there was no direction to Sachse to employ so foolhardy a procedure in cleaning out the woods. The instruction to him was a general one and he had never before climbed trees in performance of his duties. The present interpretation and the present method used was the choice of Mr. Sachse.
We do not hold as a matter of law that the causal negligence of Sachse exceeded that of Mayer. We do hold that as a matter of law such negligence of Sachse existed to a very substantial degree. As a rule the comparison of causal negligence is a matter for the jury.
In the course of its memorandum decision the trial court wrote:
"It is my impression that the answers of the jury are the result of prejudice and sympathy and that the jury did not consider the evidence or the instructions of the court, but answered the questions in the verdict solely because of sympathy for the plaintiff who without question sustained a severe injury, and that they took into consideration the fact that the defendant was an executive of a large corporation. My sympathy was also aroused because of the severity of the plaintiff's injuries, but sympathy of either the jury or the court may not control the outcome of this case. I feel very strongly that a review of all of the evidence will indicate that the jury did not fairly answer the questions in the verdict, and this is certainly pointed up by the damages as found by the jury as to pain, suffering, and disability, but more especially the award of $10,000 for future medical and hospital expenses, which is not sustained by the record. If I had not made the determination to grant the defendant's motion after verdict, I would have ordered a new trial upon all of the issues in this case because of the prejudice of the jury and the interests of justice."
In view of the findings that the order of Mayer to clean out the woods could be understood by Sachse to include the power-saw operation and Mayer should have anticipated that Sachse might do just that, we do not affirm the judgment and dismiss the action. But we consider that the jury's finding that Sachse was not guilty of any causal negligence, when the evidence was so completely to the contrary, and an award of $10,000 for future medical expense without any supporting evidence of the cost, confirms the observation of the learned trial court that the verdict was based on passion and prejudice, not on evidence. Therefore, under our discretionary powers (sec. 251.09, Stats.) we reverse the judgment and remand the cause to the trial court with directions for a new trial.
By the Court. — Judgment reversed. Cause remanded for a new trial.
I respectfully dissent from the court's opinion in this case because I believe the learned trial judge properly concluded it his duty to direct a verdict in favor of defendant. By his memorandum decision he made it clear that his only reason for permitting the case to go to the jury, after defendant moved for a directed verdict, was the opinion of this court in Davis v. Skille (1961), 12 Wis.2d 482, 490, 107 N.W.2d 458, which recommended that in "close cases" a trial court reserve its ruling on motions for directed verdict until after return of the verdict. This is what the trial judge did in the instant case.
It is difficult to find a causal relationship between plaintiff Sachse's injuries and defendant Mayer's failure to warn plaintiff of the dangers accompanying use of the power saw in a tree. Sachse had used power saws in his shop course at Shorewood high school and further learned of their dangerous nature while operating them many times during the three years prior to the accident. He testified that he knew this particular power saw was "a dangerous piece of machinery." Sachse further knew that in order to operate the saw while up a tree he would have to hold the saw with both hands and grip the tree with his legs alone. Therefore, any warning given by Mayer would not have increased Sachse's knowledge of the danger involved.
Nevertheless, even if it be assumed that the causation issue with respect to Mayer's failure to warn Sachse was for the jury, no reasonable basis existed for a jury to conclude that Sachse's negligence was less than that of Mayer. Mayer's negligence, if any, consisted of his failure to warn Sachse about a danger of which Sachse already knew at the time of the accident. On the other hand, Sachse's negligence consisted of climbing the tree with the power saw in operation and then releasing his grip on the tree with his hands in order to operate the saw knowing full well of the dangers involved. Furthermore, Sachse did this without even asking Mayer whether he wished this standing tree to be cut up.
If there ever was a case in which the injured plaintiff's negligence exceeded the defendant's as a matter of law, this is the case. While this court holds that the comparative-negligence issue is for the jury in the great majority of situations, it has not hesitated to hold that a plaintiff's negligence equaled or exceeded defendant's in the extraordinary situations in which the facts required such a result. Crawley v. Hill (1948), 253 Wis. 294, 34 N.W.2d 123; Quady v. Sickl (1952), 260 Wis. 348, 51 N.W.2d 3; Hephner v. Wolf (1952), 261 Wis. 191, 52 N.W.2d 390; Klein v. Montgomery Ward Co. (1953), 263 Wis. 317, 57 N.W.2d 188; Frei v. Frei (1953), 263 Wis. 430, 57 N.W.2d 731; Sparish v. Zappa (1956), 273 Wis. 195, 77 N.W.2d 416; Powless v. Milwaukee County (1959), 6 Wis.2d 78, 94 N.W.2d 187; Kornetzke v. Calumet County (1959), 8 Wis.2d 363, 99 N.W.2d 125; and Bembinster v. Aero Auto Parts (1961), 12 Wis.2d 252, 107 N.W.2d 193.
For the reasons stated, I would affirm the judgment for dismissal of plaintiff's action. I am authorized to state that Mr. Justice HALLOWS concurs in this dissent.