#### Adams, Respondent, vs. Bucyrus Company, Appellant.

*October 4*

October *24, 1916.*

*Master and servant: Injury to employee: Unsafe worJUng place: Evidence: Relevancy: Sufficiency: Special verdict: Instructions to jury: Damages.*

1. In an action for personal injuries caused by the fall of a two-ton iron roller which had been standing for two days on its fifteen-inch rim on a sand floor in defendant’s factory, evidence as to the jarring of the roller or of the floor by the operation of machinery was admissible as bearing upon the question of the security of the foundation on which the roller rested, even though the machinery or some of it was not being operated at the time of the accident.

2. The evidence in such case as to the condition of the floor or sand on which the roller stood is held to justify an inference that the fall of the roller was due to the insecurity of the uneven sand foundation on which it rested, and to warrant a finding by the jury that plaintiff’s working place near the roller was not reasonably safe.

3. The refusal in such case to submit in the special verdict a separate question as to what caused the tipping over of the roller was not a prejudicial error.

4. It is not error to refuse requested instructions to the jury which are embodied in the charge given.

*1475. Although, upon the record before it on a former appeal, this court was of the opinion that an award exceeding $12,000 for plaintiff’s injuries should not he sustained, yet, upon the evidence adduced at the second trial, showing more clearly the permanency of his disability and also the extent and intensity of his suffering and the certainty of its continuance through life, an award of $15,000 (reduced by the trial court from $17,300) is upheld.

Appeal from a judgment of the circuit court for Milwaukee county: W. J. TuiiNER, Circuit Judge.

*Affirmed.*

This is an action to recover damages for personal injuries which plaintiff alleges he sustained while in defendant’s employ. He claims that the injuries were caused by defendant’s failure to furnish him a reasonably safe place to work.

The statement of the facts of the case on the former appeal •as reported in 155 Wis. 70, 143 N. W. 1027, presents in clear and concise terms the relations of the parties, a description of defendant’s premises where the accident happened, a description of the appliances and machinery in the immediate vicinity of plaintiff’s working place, the location of the iron roller that fell on the plaintiff, the condition of the place where the roller stood and where plaintiff worked, and the nature and kind of sand foundation of the roller when it fell. In the light of that record it is not necessary to repeat the statement of the case here. The verdict on this trial is in substance and form the same as the verdict returned by the jury and incorporated in the report of the case on the former appeal. The jury on the second trial found in effect: (1) That the place where plaintiff was at work when injured was not reasonably safe considering the nature of his employment; (2) that the defendant knew in time to have prevented the injury to plaintiff that the place where he was at work was not reasonably safe; (3) that the defendant ought to have, known in time to have prevented the injury to plaintiff that the place where he was at work was not reasonably safe; (4) that such failure to provide a reasonably safe place for the plaintiff to work was the proximate cause of his injury; *148(5) that no want of ordinary care on the part of the plaintiff proximately contributed to produce his injury; (6) that the plaintiff in the exercise of ordinary care ought not to have known that the place in which he was working at the time of the injury was not reasonably safe; (7) that no negligence on the part of Emil Ranthum proximately produced plaintiff’s injuries; and (8) that the sum of $17,800 will reasonably compensate plaintiff for the injuries he sustained.

The court overruled defendant’s motions to change certain answers of the verdict, for judgment, and for a new trial, and entered judgment for the plaintiff in the sum of $15,000 with costs. Erom such judgment this appeal is taken.

Eor the appellant there was a brief by Quarles, *Spence &*Quarles, attorneys, and *Joseph B. Doe,*of counsel, and oral argument by *Mr. Doe*and *Mr. W. Q. Quarles.*

Eor the respondent there was a brief by *Stover &*Stover, and oral argument by *John S. Stover*and *James H. Stover.*

Siebeceeb, J.

It is contended that the admission of evidence pertaining to the jarring of the roller, or the floor at the place where the roller in question stood before it fell, by the operation of various kinds of machinery and appliances in defendant’s manufacturing plant was clearly irrelevant and prejudicial under the issue raised by the pleadings and because it conclusively appeared that the machinery referred to as causing the jarring, except the north sand mill, was not in motion when the accident occurred. As indicated in the former decision, the question ,of whether or not there were vibrations of the floor where the roller stood, caused by the jar of machinery, was a material inquiry on the question of the security, of the foundation on which the roller rested, and hence testimony on the subj ect was proper. The record does not disclose a state of facts which conclusively established that there was no such jarring or that vibrations caused thereby were not communicated to the floor on which the roller *149rested. True, tbe evidence tends strongly to sbow that some of tbe machinery, which plaintiff claims produced such an effect, was not being operated at the time of the accident; this, however, cannot be said to make the evidence offered on the-subjeet wholly incompetent, for it appears that the roller had stood where it was at the time it fell for about two days. This evidence had a bearing on the question whether or not the jarring affected the place where the roller stood, and if so whether it so affected this place as to make the roller insecure. It was considered on the former appeal that evidence offered by defendant and rejected by the court to show that any jarring from operating machinery could not have affected the security of the roller, should have been received as material on this issue. It was for the jury to determine whether or not the operating of the machinery referred to in the evidence produced such an effect, in the light of the statements of the witnesses who testified to having taken notice thereof, and it must be presumed that the jury gave this evidence only such consideration and weight as it reasonably bore on the question at issue between the parties. It must be held that the reception of the evidence on this question over defendant’s objection was not prejudicial error.

It is asserted by appellant that the condition of the floor, or sand, on which the roller stood, as disclosed by the evidence, shows no grounds from which th.e jury could be permitted to infer that the place where the plaintiff worked was not reasonably safe. The evidence is in conflict as to the-depth and quantity of sand at the place of the accident. In testifying to the depth of the sand under the roller the witnesses’ estimate varied from about one inch to ten inches, and some of them testified that the surface was even, others that it sloped and was dumped in piles for use in the sand mill. A careful review of the evidentiary facts discloses that the-evidence on this question on this trial is in substance and effect the same as it was on the first trial. The trial courts on *150both trials, and tbis court on tbe former appeal, beld that tbis •evidence permitted of tbe inference that tbe roller stood on a sand foundation of a sloping and uneven nature and that sucb conditions justified tbe inference that tbe roller bad an insecure foundation wbicb caused it to move and fall. It is manifest that it did move and fall on tbe plaintiff, and these facts and circumstances warranted tbe jury in finding that tbis resulted from tbe insecurity of tbe roller due to tbe uneven sand foundation on wbicb it rested. True, tbe evidence bearing on tbis question is sharply in conflict and tbe witnesses did not attempt to explain wbat caused tbe roller to topple over, but tbe course of its movement in tbe sand and its fall permits of tbe inference that its foundation was unstable and uneven, and that its weight and its position made tbe support on wbicb it rested so insecure and unsafe as to cause it to lose its equilibrium and fall on tbe plaintiff.

Tbe claim that tbe refusal of tbe court to submit tbe inquiry to tbe jury to find specially wbat caused tbe tipping-over of tbe roller was prejudicial error, we think is not sustained. Tbe finding by question 1 that tbe place was not reasonably safe necessarily embraced tbis inquiry, and it must be presumed that tbe jury found tbe roller tipped over because of tbe insecurity of tbe sand foundation. Tbe rejection of tbe requested instructions to tbe effect that plaintiff bad tbe burden of proof to show wbat caused tbe roller to tip as it did, and that tbe jury must be satisfied to a reasonable certainty of wbat caused it to tip to justify them in finding that tbe place where tbe plaintiff worked was not reasonably safe, was not error, because tbe instruction given by tbe court on tbis subject embodies wbat was thus requested. Tbe court properly instructed tbe jury as to wbat constituted actual and constructive notice to defendant of tbe alleged unsafe condition of plaintiff’s working place in submitting these issues in questions 2 and 3 of the special verdict and hence no error was committed in refusing to instruct as requested on these questions.

*151Tbe evidence on tbe question of tbe plaintiff’s assumption of tbe risk and of bis contributory negligence is in substance tbe same as upon tbe first trial, and we find nothing in tbe record wbieb shows that our conclusions as to these questions on tbe former appeal are incorrect, and must adhere to tbe view that tbe trial court correctly-submitted these issues to tbe jury for determination upon tbe evidence.

On tbe former appeal this court expressed tbe opinion upon tbe record before it that an award of damages in excess of $12,000 should not be sustained. Upon this second trial tbe jury made an award of $17,300 and tbe trial court reduced it to $15,000. The trial court in ruling on this question declared that tbe jury “were of more than average intelligence and tbe court is of tbe opinion were not influenced by passion, prejudice, or sympathy in fixing tbe amount of damages sustained by the plaintiff.” Tbe court also held that in tbe light of tbe long time since tbe first trial and tbe evidence adduced, it appears beyond question that plaintiff is wholly incapacitated from pursuing bis former vocation or doing labor of like kind and that be is so crippled that be will permanently require tbe use of crutches. Tbe evidence now shows more conclusively than before tbe intensity and extent of bis-suffering and tbe certainty of its continuance through life. We are persuaded that this court should not overrule tbe judgment of tbe trial court on this question. We are of tbe opinion that the defendant bad a fair trial and that tbe case was properly submitted to tbe jury and that tbe judgment appealed from must be affirmed.

*By the Court.*— Tbe judgment appealed from is affirmed.