#### Scieczinski, Respondent, vs. Filer, & Stowell Company, Appellant.

*November 18*

December *5, 1911.*

*Master and servant: Injury: Unsafe working place: Evidence: Negligence of fellow-servants: Making repairs: Assumption of risk: Appeal: Review: Findings by jury: Trial: Special verdict: Damages.*

1. While engaged in removing slag from the cupola room of defendant’s foundry, plaintiff was injured hy the fall of a pile of brick in such room, intended for future use in lining the , cupola. Evidence showing, among other things, that the brick fell because piled too high, not because of negligence in the laying or placing of them in the pile; that defendant had designated the place for piling and the quantity of brick to be piled, but that such quantity would not fit in that place unless piled to a dangerous height; and that shortly before the injury the defendant’s foreman in charge of placing the brick had passed through the room and close to the pile but did not notice it, is *held*sufficient to sustain a recovery upon the - ground of defendant’s failure to exercise reasonable care to keep the place reasonably safe.

' 2. The facts that plaintiff and the men who piled the brick spoke no common language and could communicate only by signs, . and that they usually worked in different gangs under separate foremen and at different classes of work, are significant only as bearing upon the contributory negligence of plaintiff and tending to show that he took no active part in making the place unsafe.

*5343. Determining as to the quantity of brick to be piled and tbe place and manner of piling was part and parcel of tbe master’s duty to use reasonable care to maintain a safe place, and if there was a failure in that duty the negligence of a fellow-servant co-operating would not bar a recovery.

4. The duty of the master to keep the place safe did not cease merely because repairs were being made by the use of the brick, where the injured servant was not himself at the time participating in the making of such repairs.

5. The verdict acquitting plaintiff of assumption of risk and contributory negligence, supported by evidence or by the lack of evidence to the contrary, will not be disturbed on appeal.

■S. Under the circumstances stated, plaintiff was charged only with reasonable care for his own safety and to notice obvious dangers; and it cannot be said that the danger from the piling of the brick was so obvious to an untrained mind engrossed in other work as to require a holding, as matter of law, that plaintiff assumed the risk.

7. A finding by the jury that the place was not reasonably safe lost none of its legal effect by reason of another finding that the pile of brick was not reasonably safe; nor did the latter finding or the submission of the question confuse the trial or issues or prejudicially affect the defendant.

8. An award of $11,000, reduced by the trial court from $15,000, for very severe injuries permanently incapacitating a man forty-seven years old, is *held,*though large, not so excessive as to call for interference by this court.

Mabshaix, X, dissents.

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

*Affirmed.*

For tbe appellant there was a brief by *Doe & Ballhorn,*and oral argument by *J. B. Doe.*

*Casimir Gonshi,*attorney, and *C. H. Hamilton,*of counsel, for tbe respondent,

cited, in addition to Wisconsin cases, *Kreigh v. Westinghouse, C., K. & Co.*214 U. S. 249, 256, 29 Sup. Ct. 619; *Choctaw, 0. •& Q. B. R. Co. v. McDade,*191 U. S. 64, 66, 24 Sup. Ct. 24; *Santa Fe Pac. R. Co. v. Holmes,*202 U. S. 438, 26 Sup. Ct. 676; *Schminhey v. Sinclair & Co.*131 Iowa, 130, 114 N. W. 612; *Stephens v. Hudson Valley K. Co.*69 Hun, 375; *Freeman v. Glens Falls P. M. Co.*61 Hun, *535125, 15 IST. Y. Supp. 657; *Cullen v. Norton,*52 Hun., 9; *.Blondín v. Oolitic Q. Co.*11 Ind. App. 395, 37 IST. E. 812; *Rigsby v. Oil Well 8. Co.*115 Mo. App. 297, 91 S. W. 460; *■8. C.*130 Mo. App. 128, 108 S. W. 1128; *Chicago H. & B. Co. v. Mueller,*203 Ill. 558, 68 1ST. E. 51; *Fogarty v. St. BouisT. Co.*180 Mo. 490, 515, 79 S. W. 664; *TJren v. Golden T. M. Co.*24 "Was!.. 261, 64 Pac. 174; *Zinteh v. Stimson M. •Co.*9 Wash. 395, 37 Pac. 340; *N. W. Fuel Co. v. Danielson,*57 Eed. 915; *Sanborn v. Madera F. & T. Co.*70 Oal. 261,11 Pac. 710.

Timlif, J.

A pile of brick in the cupola room of defendant’s foundry fell upon plaintiff, injuring him severely, while Ee was in the employment of defendant and engaged in removing with a wheelbarrow slag and cinders from this room. The room was so small in proportion to the quantity of brick required to be piled therein that- the brick pile extended from the square frame at the bottom of the cupola to the door of the room, a length of about eight feet, and piled three brick or twenty-four inches wide would be about the limit of width which could be had, leaving room to open the said door and 'leaving space for plaintiff to work. With what brick there was already piled in this room the quantity brought in on the ■occasion in question raised the pile of the stated width and length to about twelve feet in height. The floor of this room was a bed of dirt and cinders, concave in the center, with a slight slant if any from the walls toward this center. The •defendant designated the place upon this floor where the brick •should be piled and the quantity of brick to be piled. There was, prior to the time in question, some brick in this room ■and at this place, forming a low pile of similar width. The brick kept in this room as well as the brick brought in upon the occasion in question was fire-brick, kept there and brought there for the purpose of lining the cupola. This- was relined •every six months, and there was during the six-months inter*536vals an occasional necessity for patching this brick lining. Relining was contemplated at some indefinite future time when the fire-brick was brought in and piled, on September 17 and 18, 1907; but no relining was then in progress. This cupola room, the cupola itself, and the men employed therein and thereabouts, were under the charge and superintendence of the foreman, Rarbier, whose duty it was to have the firebrick ready in the cupola room for use when needed. Barbier made a requisition for brick upon *Kramer, the*yard foreman, and the latter detailed two Greek workmen to bring the brick from the yard into the cupola room with wheelbarrows. The plaintiff did his wheelbarrow work removing the slag in the forenoon and worked at other cupola work in the afternoon. The Greeks did their wheelbarrow work bringing in brick in the afternoon and piled the brick or did yard work in the forenoon, and did no cupola work. This was because the room and its entrance were so narrow that two wheelbarrow crews could not work at the same time. The Greeks and the plaintiff, who was a Pole, spoke no common language and could communicate only by signs. In the forenoon of September 18th, while the Greeks were engaged in piling up the brick they had brought in and the plaintiff with one Pitulski was engaged in wheeling out slag, the brick pile in the cupola room, which had reached a height of from ten to twelve feet and of the length and width before stated, suddenly toppled over on-plaintiff. The jury found that the pile of brick was not reasonably safe and that the place was not reasonably safe; that the defendant ought in the exercise of ordinary care to have known of this, and was guilty of a want of ordinary care which was the proximate cause of plaintiff’s injuries. The court added two findings resting upon undisputed evidence, viz.: that the location of the brick pile was designated by defendant, and that the unsafe condition of the brick pile was caused by the height to which the brick were piled. The jury *537found for tbe plaintiff upon tbe questions of assumption of risk and contributory negligence.

It is argued that, a nonsuit should have been granted or a verdict for defendant directed as requested at tbe trial. We cannot upon tbe evidence relating to defendant’s liability, which is practically without dispute, so hold. The quantity of brick to be placed in this small room on the floor or foundation there existing and the place where it was piled and the manner of piling it were under the command and supervision of the foreman, Barbier. The pile fell from some cause. There is no evidence that the laying or placing of the brick in the pile by the Greeks was negligently or imperfectly done. In short, the finding of the court that the brick fell because it was piled too high rather negatives this, if a negative was needed for such a fact which does not,appear by evidence. The defendant provided these small and cramped quarters, fixed the quantity of brick to be piled therein, and designated the place where it should be piled. That quantity would not fit in that place unless it was piled to this dangerous height. The defendant’s foreman in charge of the placing of this brick passed through the cupola room and close by this pile of brick shortly before the injury, but claims his mind was engrossed with other matters and he did not notice the pile, and these duties all related to and were part and parcel of the master’s duty to use reasonable care to maintain a safe place. In this view the question whether or not the Greeks were fellow-servants of the plaintiff becomes immaterial. That the Greeks and the plaintiff were members of different gangs, each under a different foreman usually, and not engaged in exactly the same work, is only significant as bearing upon the contributory negligence of the plaintiff as showing that he himself took no active part in making the place unsafe. The recovery here may be based on the failure of the master to exercise reasonable care to keep the place reasonably safe. *538In *Hulehan v. G. B., W. & St. P. R. Co.*68 Wis. 520, 32 N. W. 529, judgment for plaintiff was affirmed upon a special verdict finding: (1) Tbe injuries complained of were caused by tbe negligence of the defendant; (2) this negligence consisted in allowing sticks or blocks of wood to remain along tbe track; (3) these sticks or blocks of wood bad remained for several days prior to tbe injury; (5) tbe sticks or blocks of wood along tbe track were allowed to fall there by employees on tbe train in loading tbe tender; (6) it was tbe duty of defendant’s section foreman to remove tbe blocks and sticks. For other cases where tbe neglect of a fellow-servant co-operating with tbe failure of tbe master to furnish or maintain a safe place produced tbe injury, see *Driscoll v. Allis-Chalmers Co.*144 Wis. 451, 129 N. W. 401; *Mulcairns v.*Janesville, 67 Wis. 24, 29 N. W. 565; *Halwas v. American G. Co.*141 Wis. 127, 123 N. W. 789; *Rankel v. Buckstaff-Edwards Co.*138 Wis. 442, 120 N. W. 269; *Eingartner v. Ill. S. Co.*94 Wis. 70, 68 N. W. 664; *Beach v. Bird & W. L. Co.*135 Wis. 550, 116 N. W. 245; *Sparling v. U. S. S. Co.*136 Wis. 509, 117 N. W. 1055. Because repairs were contemplated consisting of relining tbe cupola, tbe duty of tbe master to keep tbe place safe did not cease where tbe injured servant was not himself at tbe time participating in tbe making of such repairs. “That at most would be one of tbe circumstances bearing on tbe question of what would constitute reasonable safety and on tbe measure of notice to an employee of tbe existence of some defects or perils.” *Gorsegner v.*Burnham, 142 Wis. 486, 125 N. W. 914. Tbe answers of tbe jury to tbe effect that tbe pile of brick was not reasonably safe and tbat tbe place where tbe plaintiff was injured was not reasonably safe, therefore have support in tbe evidence and cannot be disturbed. Tbat portion of tbe verdict acquitting tbe plaintiff of assumption of risk and contributory negligence also rests upon evidence and lack of evidence to tbe contrary and must be allowed to stand. We must bear in mind tbat *539bere tbe burden of proof is upon defendant. Erom tbe evidence submitted it does not follow as matter of law tbat tbe plaintiff knew or ought to bave known wbat quantity of brick was required to be piled bere or when tbe quota to be piled' would be filled and further piling cease. He probably did not know until tbe last wheelbarrowful was brought bow many brick were coming in, nor until tbe last course was laid bow high tbe pile would grow, nor tbe resistance of tbe floor. All of these were matters which tbe master, if be performed bis duty, might in tbe exercise of ordinary care be required to consider, while they might not be so apparent to tbe plaintiff, who was only charged with reasonable care for bis own safety and to notice obvious dangers. Whether this pile of brick on this floor would fall at ten, eleven, or twelve feet height was not so obvious to an untrained mind engrossed in other work as to require us to set aside or disregard tbe verdict of tbe jury acquitting tbe plaintiff of assumption of risk. It is impossible to say definitely at wbat time this pile became dangerous nor bow long tbe plaintiff worked in proximity it thereafter. We cannot disturb tbe verdict on this ground. We perceive no material or prejudicial error in tbe form of tbe questions submitted to tbe jury. Tbe finding tbat tbe place was not reasonably safe cannot lose its legal potency or effect because of tbe additional finding tbat tbe pile of brick was not reasonably safe, nor did tbe latter finding or tbe submission thereof, in our view, confuse tbe trial or issues or prejudicially affect tbe defendant. There are some verbal lapses in tbe instructions, but none of serious consequence and none sufficiently prejudicial to call for reversal. It would do no good to discuss them bere, because they do not indicate any legal heresy but merely a careless use of language.

Tbe damages found by tbe jury, $15,000, were reduced by tbe circuit judge to $11,000. We would bave been better satisfied with a greater reduction. But upon this matter tbe *540learned trial judge and tbe jury have exercised judgment and there is and always will be different opinions as to tbe proper amount of damages in sucb cases. Here tbe injuries are no doubt very severe. We bave in tbe instant case no unanimity as to tbe proper amount. We are unable to say that tbe judgment and experience of tbe learned trial court were so far out of tbe way as to call for further interference on tbe part of this court with tbe verdict.

*By the Court.*— Judgment affirmed.

Tbe following opinion was filed December 15, 1911:

Marshall, J.

(dissenting). I am not satisfied tbe basic ground for recovery found by this court is legitimate. I must now and then raise my voice against what seems to me a judicial refinement of logic, changing tbe law of negligence as regards who are fellow-servants. That law existed when tbe state was admitted into tbe Union and is a part of tbe written law, — more dignified than any mere legislative enactment, because of having been made one of tbe fundamentals by sec. 13, art. NIV, of tbe constitution. If, as so established, it is not appropriate to present conditions, tbe power to change it is in tbe legislature, not only because not taken away by tbe constitution, but because expressly therein reserved. .The court has no more right to vary it in any particular than to legislate in respect to any other matter.

As I bad occasion to say on another occasion *(Borgnis v. Falk Co., ante,*p. 327, 133 N. W. 209), tbe legislature has bad ample power to deal with tbe subject of defenses in tbe law of negligence for more than sixty years, and till very recently did not attempt it at all. Tbe law as it came to us, as I understand it, is stated at length in my opinion in *Bankel v. Buckstaff-Edwards Co.*138 Wis. 442, 120 N. W. 269, and again in *Halwas v. American G. Co.*141 Wis. 127, 123 N. W. 789. There I was compelled to dissent and speak inde*541pendently. The law as stated in my opinion is according to common-law principles in the beginning. It was many times applied by the court before those cases were decided and has been since, notably in *Knudsen v. La Crosse S. Co.*145 Wis. 394, 130 N. W. 519, and *Strehlau v. John Schroeder L. Co.*142 Wis. 215, 125 N. W. 429. If it should be changed, and I would not suggest to the contrary, then that should be done by the legislature and not by any judicial extension or straining of the safe-place rule, or by dividing entire undertakings into different departments or tasks.

Here, it seems to me, the person injured and the one who piled the brick and all concerned in the matter, were members of a crew having to do, generally or particularly, with operating the cupola. Plaintiff’s working place was perfectly safe till made unsafe by his fellow-servant by the manner in which the bricks were piled up. In such cases, by a long line of decisions, particularly in the cases above cited, also *Meilke v. C. & N. W. R. Co.*103 Wis. 1, 79 N. W. 22, and *Pern v. Wussow,*144 Wis. 489, 129 N. W. 622, the actors are all fellow-servants. If the result is too harsh, and I am inclined to think it is, as I have several times in legal opinions said both for the court and independently, the legislature should wake up to the matter fully, and ought to have done so long ago. True, it made a good though tardy beginning, but the more firmly courts vindicate the law as given to them the more quickly and efficiently will the lawmaking power remedy any defect in it which time and changed conditions have developed or made significant.

I must dissent from the result declared, further, because the amount recovered is too large as fixed by the jury, and error was committed in the way it wa£ then dealt with, because it was not cut low enough, and because it is obvious the trial court in making the reduction did not follow the established rule requiring the reduction to be to an amount as low as any intelligent jury properly instructed could reasonably *542be expected to place it. *Baxter v. C. & N. W. R. Co.*104 Wis. 307, 80 N. W. 644; *Heimlich v. Tabor,*123 Wis. 565, 102 N. W. 10.

I note, in tbe opinion of tbe court, it is observed tbe trial judge and tbe jury exercised tbeir judgment in fixing tbe amount, therefore, since it is not manifest tbe latter placed it too bigb, sucb judgment should not be disturbed. In that I am gratified to observe tbe court recognizes tbe right and duty of tbe circuit court under sec. 2878, Stats. (1898), to deal with a verdict as in this case because of tbe amount being clearly too much, though tbe verdict be not characterized by passion or prejudice. But I think tbe court, for tbe time, failed to give effect to tbe rule to be observed in sucb cases to obviate tbe danger of prejudicially invading tbe right of trial by jury. That rule is very firmly established. Perhaps this, court was first in tbe field in respect to discovering a safe logical way of justly terminating litigation where erroneously closed, tbe error being only in an excessive assessment of damages. That it is a very valuable rule, both to private and public rights, and its application at tbe circuit is to be encouraged, so far as practicable, to speedily close controversies, has been many times said. But difficulty lies often in failure in respect to tbe standard to be followed, to wit: tbe lowest amount an unprejudiced jury properly instructed could be reasonably expected to place it; or failure to appreciate tbe dignity of tbe constitutional right of jury trial, and perhaps in lapses, here sometimes by use of language not requisite to keep in clear light tbe correct rule.

Thus in *Hanson v. Johnson,*141 Wis. 550, 557, 124 N. W. 506, tbe court was moved to say, for a reason for not disturbing tbe decision of tbe trial court in reducing a jury assessment of damages, that “tbe circuit judge . . . has actually passed on tbe question and reduced tbe verdict to sucb an amount as in bis judgment is proper.” Tbe same idea is carried into tbe opinion here.

*543It must be admitted that, to take the- judgment of the circuit court, or that of this court as regards the amount of compensation which a plaintiff should have in any case, and make that compulsorily control, is supplanting the judicial judgment for that of a jury, contrary to the constitution. The court, most emphatically, so declared in *Heimlich v. Tabor, supra.*There it was remarked, in effect.: Doubtless unless the trial judge, — in scaling down a verdict and permitting one party to a suit to accept the situation thus created and end the controversy whether his adversary is willing or not, — determines the proper amount from the standpoint of as small a sum as an unprejudiced jury properly instructed would probably give, the language of jurists and text-writers, — forcibly as they condemn such practice — would seem to be unanswerable. Thus, it will be seen, the judgment of the trial court or of this court in such a case as this as to the proper amount of damages, generally speaking, is not a legitimate basis for a compulsory judgment; but after a jury has once dealt with the matter and awarded too large a sum, either through passion or prejudice or manifest error of judgment, the opinion of the trial or of this court in a proper case, as to the lowest amount a jury, properly instructed, would assess the damages, is a legitimate basis for such a judgment.

Row it seems clear to me, the learned trial court did not follow the rule stated and the judgment of this court fails to legitimately acquit of error in that regard, but rather seems to emphasize it, though I must confess there was, doubtless, no thought of doing so. Erobably the general idea is that the court below did not, manifestly, fail to observe the right rule, though I must say, in this connection, I fear a different idea may be read out of the court’s opinion.

The plaintiff was some forty-seven years of age. Surely he was very badly injured and, as the jury had a right to find, will be permanently incapacitated for ordinary labor, and liable to need an attendant of some sort more or less. In the *544very prime of his life the limit of his earning capacity was about $500 per year. That would naturally have grown less after entry into the period of old age. Assuming in his favor his full expectancy and absence of disability complained of, it would not be more than $200 per year in the old-age period, or perhaps an average of $350 per year for the whole life. From the average of four tables of mortality at hand, his period of expectancy at the time of the recovery was twenty-two years. He was awarded $11,000. Yearly interest thereon would greatly exceed his average earning power, leaving at the end the full $11,000 and a considerable accumulation. The $11,000 would purchase an annuity for him of about $700 per year, or twice his average earning power.

The foregoing, it seems, significantly demonstrates that the trial court did not cut the verdict down as low as a fair jury, properly circumstanced, might probably place it. True, the unfortunate plaintiff was entitled to a reasonable amount to compensate for elements of loss not susceptible of determination by any standard but that of sound human judgment; but such judgment should be based on the thought that human suffering cannot really have any money equivalent which is really full without operating as a penalty so onerous upon the wrongdoer whose very wrong, without real moral turpitude, makes the two mutual victims in misfortune, as to be impracticable of enforcement in the social state where men must move about and'do business and be subject, necessarily, to their own frailties and those of others. That is recognized in every special system for remedying losses from personal injuries. What, in addition to computable loss, is reasonable under all the circumstances, for past and future pain and those other elements as to which there is no basis for calculation? That is the question. Not what, in the broad sense, will be a full money equivalent for such elements. • It seems that the former is the logic of the principle of compensation in such cases, entrenched in the law, and that it should be *545made more and more significant as tbe necessity tberefor bas become more apparent. Tbis court bas said in a case like tbis:

“Although tbe defendant may have committed a fault, it is not, for that reason, an outlaw. . . . Society ... is interested to preserve it against spoliation, by applying to plaintiff’s recovery a proper limit of compensation. . . . Doubtless, tbe underlying idea of tbe law of damages is indemnity. Rut . . . absolute indemnity is impossible. Tbe law bas no standard by which it can measure indemnity for such injuries in money. Tbe most it aims to do in that regard is to give some just compensation for tbe damages suffered, which in many, if not in most, cases must fall short of complete indemnity. Tbe just rule to be given to tbe jury is, such sum as will fairly compensate for tbe damages suffered — reasonable in amount, and not excessive.” *Guinard v. Knapp-Stout & Co. Co.*95 Wis. 482, 490, 70 N. W. 671.

I can do no better than to quote that language, uttered many years ago and many times referred to. Note tbe words “such sum as will fairly compensate,” not fully do so. Note tbe idea, that a full money equivalent is impossible, and any effort to attain it must not only be unsuccessful but unjust. Tbe difference between tbe practicable, — reasonable,—and tbe full equivalent in dollars, is one of tbe losses for which there is no remedy.

Applying tbe logic of tbe foregoing to tbis case, I think that a fully informed jury might probably limit tbe recovery in favor of tbe unfortunate respondent to tbe full earning value of bis life on tbe basis of tbe wages be was getting at tbe time of tbe injury and no limitation of bis expectancy of years below tbe average. That would be about $8,000.