#### Howard, Respondent, vs. Beldenville Lumber Company, Appellant.

*February 4*

February *18, 1908.*

*Appeal and error: Review: Second appeal: Law of the case: Trial: Special verdict: Distinct issues submitted in the disjunctive: Duplicity: Prejudicial error: Evidence at former trial, how proved: Bill of exceptions: Submission of issues to jury: Proximate cause: Excessive verdict: Review: Necessity of motion for new trial.*

1. In case of the reversal of a judgment on appeal, a new trial, a second judgment, and an appeal therefrom, the former decision is to he regarded as the law of the case and conclusive in disposing of the second appeal as *to*all questions common *to*both appeals, raised under the same circumstances as before.

2. Two distinct issues of fact should not be embodied in one question of a special verdict. If they are so embodied and are expressed in the disjunctive, and the error is not rendered harmless by instructions or something in the record, the defect is fatally prejudicial.

3. When two propositions of fact are embodied in the disjunctive in a question of a special verdict, and there is no evidence as to one of them, and the jury are expressly, or in effect, instructed to answer only as they shall find respecting the other proposition, the duplicity is harmless.

*6454. In case of a first and second trial of an action, there being a bill of exceptions duly settled and made a part of tbe record containing tbe evidence given on tbe former and sufficient ground being shown upon tbe latter for' reproducing tbe evidence of any witness given on tbe first, that may be done by reading from such bill, though, if it is not certified to contain all tbe evidence, tbe rest thereof may be shown by any competent prooí, such as a certified transcript of tbe court reporter’s minutes.

5. All elements of proximate cause may be submitted to tbe jury as involved in a single issue of fact.

6. Tbe objection that a verdict is excessive cannot be raised on appeal in tbe absence of a bill of exceptions showing that a motion was made for a new trial on that ground. A motion to set aside tbe verdict as contrary to tbe evidence and for a new trial does not raise tbe question of excessiveness of tbe verdict.

[Syllabus by Maeshall, X]

Appeal from a' judgment of tbe circuit court for Rusk county: JohN K. Pabish, Circuit Judge.

*Affirmed.*

Action to recover compensation for personal injuries claimed to bave been caused by negligence on tbe part of tbe defendant.

Tbis is a second appeal. Tbe judgment rendered on tbe first trial was reversed by tbis court and a new trial awarded, as will be found by reference to 129 Wis. 98, 108 N. W. 48. Tbe issues tried and tbe general cbaracteristics of tbe case were substantially tbe same on tbe second trial as on tbe first. Therefore for a statement of details, reference is now made to the former decision.

Tbe claim of tbe plaintiff was that, through a bole in tbe main floor of defendant’s mill, which it negligently permitted to exist, nearly over the place on tbe floor below where he, as one of its employees, was required to be in tbe performance of bis duties on tbe occasion in question, a piece of wood unexpectedly dropped striking him on tbe right band, causing him to make such a movement that it was caught between a belt and a rapidly revolving pulley, whereby bis arm and shoulder were broken, causing him great pain and *646permanent disablement. He was thirty-one years of age when he was injured. The jury found substantially as follows :

1. There was a hole in the mill floor as alleged in the complaint.

2. Defendant knew of the existence of such hole a sufficient length of time before plaintiff was injured to have remedied the defect by the exercise of "ordinary care.

3. The hole had existed a sufficient length of time before the accident that defendant ought, in the exercise of ordinary care, to have known thereof.

4. The existence of the hole in the floor, under the circumstances, was the proximate cause of the plaintiff’s injuries.

5. Plaintiff did not know, nor should he have known, of the existence of the hole and that an injury might thereby result to him.

6. It will take $9,900 to compensate plaintiff for his injuries.

Judgment was rendered accordingly, exceptions being duly preserved during the trial and subsequent thereto to raise the questions for decision discussed in the opinion.

For the appellant there was a brief by *L. B. McQiU*and *Morton Barrows,*and oral argument by *Mr. Barrows.*

For the respondent there was a brief by *Samuel A. Anderson*and *W. BL.*Stafford, and oral argument by *Mr. Anderson.*

Mabshall, J.

Did the court err in refusing to direct a verdict in favor of the defendant, due motion therefor having been made *%*

That is the first proposition submitted for consideration. In support thereof the following minor propositions are suggested :

1. There was not sufficient evidence to warrant the jury in finding that there was a hole in the mill floor as claimed.

2. If there were such a hole, there was not sufficient evidence to warrant the jury in finding that the defendant ought *647reasonably to have anticipated tbat an injury might result therefrom to any of its servants working on the floor below.

3. There was not sufficient evidence to warrant the jury in finding that plaintiff’s injury was caused by a piece of wood falling through the hole and striking his hand, causing it to go between the belt and the revolving pulley.

It is a sufficient answer to all .such propositions that the evidence, as is confessed by appellant’s counsel, was substantially the same on the last trial as on the first, the only difference being that appellant produced more evidence of the same character as before in opposition to that of respondent, and it was held on the appeal from the first judgment that there was sufficient evidence to carry the question of the existence of the hole and actionable negligence on the part of the defendant in respect thereto, to the jury. The former decision, under the circumstances, is the law of the case which must govern on this appeal. *Collins v.*Janesville, 111 Wis. 348, 87 N. W. 241, 1087; *Hill v. Am. S. Co.*112 Wis. 627, 88 N. W. 642; *Rueping v. C. & N. W. R. Co.*123 Wis. 319, 101 N. W. 710. Perhaps cumulative evidence might be in such amount as to take a case out of that rule, but it is considered that such is not the case here. Eive witnesses testified to having heard respondent say he did not know how he was injured. Pour testified likewise on the first trial. Two witnesses, who did not agree with each other, testified to respondent having made statements to them severally as to how his injury occurred, which were inconsistent with his story at the trial, while one gave like testimony before. No more need be said on this branch of the case. It was argued at great length by counsel for the appellant, but because of the rule of law to which we have referred it is useless to go over the ground in this opinion. We are not permitted to consider the matter as an original proposition. The former decision must be regarded as having set the question entirely at rest.

The court permitted to be read in evidence the testimony *648given by Herman T. Hanson on tbe former trial, as preserved in tbe bill of exceptions, a proper case having been made for reproducing snob witness’s evidence. Error is assigned upon tbe ground tbat tbe reporter’s certified transcript of tbe evidence formerly given was tbe best evidence thereof. It is tbe opinion of the court that the question thus raised is ruled in respondent’s favor by *Wilson v.*Noonan, 35 Wis. 321, and *Hill v. Am. S. Co., supra,*regardless of what has been decided in any other jurisdiction.

In tbe first case cited it was held tbat a bill of exceptions purporting to contain all of tbe evidence given at tbe trial of a cause is competent and tbe best proof of what the witness then testified to, and may be read as such upon there being a proper occasion at a subsequent trial for its reproduction.

In tbe second case cited it was claimed, as here, tbat tbe best evidence of what a witness testified to on one trial, in case of its being proper to show tbe same upon a subsequent trial, is tbe transcript made and certified by tbe official reporter, especially since such certified transcript is made evidence by sec. 4141, Stats. (1898). Tbe court, however, adhered to tbe former ruling notwithstanding tbe passage of tbe statute in tbe meantime, saying tbat the reporter’s certified transcript is of itself of “no higher grade of evidence than tbe testimony of tbe reporter, or any other witness who was present upon tbe former trial, as to what transpired.”

True, tbe record here does not affirmatively show tbat tbe bill read from contained all of Hanson’s former evidence, though since it was concerning a vital point in tbe case and no objection was made on that precise ground, presumably it did. But in any event it was competent to reproduce tbe evidence as contained in the bill, subject to tbe right of appellant to show by competent proof tbat tbe witness gave other evidence, and what it was.

We do not overlook tbe fact tbat tbe particular occasion for reading from the bill of exceptions was different from tbe *649occasion in eithei* of the other cases cited. That does not seem to be important. Such cases lay down as a general principle, that when npon one trial of a case it is competent to produce the evidence of a witness who testified npon • a previous trial, it may be done by reading from a bill of exceptions containing such evidence.

Our attention is called to a number of cases supposed by counsel for the appellant to be somewhat in conflict with the rule above stated. We shall not refer to them in detail. In the main they are not in conflict with the rule of this court.

Counsel refers us to Wigmore on Evidence, vol. 3, p. 2067. The author’s general conclusion, which is supported by a large number of cases cited in note 2 at page 2068, is in harmony with the rule of this court. He said:

> “Erom the point of view of practical safety, the question is a difficult one to settle by a general rule, and must depend much on the local professional methods. But it seems clear, so far as principle is concerned, that where the parties to the later trial are (as in the usual ease) the same in interest, the signing of the bill in the first trial is an admission of the correctness of its statements, and the objection that the admission was intended for that trial only . . . may affect its weight but not its admissibility; while, as against one not a party to the former trial., the bill involves no admission of his, and is furthermore not available as an official statement of the judge. The majority of courts, on one ground or another, receive the bill to prove the tenor of the former testimony.”

Among the cases mentioned are the following which sup>port the text: *Jaccard v. Anderson,*37 Mo. 91, 96; *Louisville W. Co. v. Upton,*36 S. W. 520, 18 Ky. Law Rep. 326; *Columbus v. Ogletree,*102 Ga. 293, 29 S. E. 749; *Given v. Palmour,*111 Ga. 885, 36 S. E. 969; *Kean v. Comm.*10 Bush, 190; *Reynolds v. Powers,*96 Ky. 481, 29 S. W. 299. In *Kean v. Comm., supra,*the court said: “The evidence in a bill of exceptions may be read (when the witness is dead) in a civil action where a retrial has been ordered. . , ..”

*650In *Louisville W. Co. v. Upton, supra,*tbe situation was precisely tbe same as in tbis case. Tbe decision of tbe court is stated in tbe syllabus thus:

> “Tbe court may permit tbe testimony of a witness, given on a former trial, to be read from tbe bill of exceptions, made part of_tbe record of tbe case, where tbe witness is absent from tbe state.” 36 S. W. 520.

While we must recognize that there are authorities in conflict with tbe foregoing, tbe rule in tbis state must be regarded as settled, as we have indicated.

Tbe court submitted to tbe jury tbis question: “. . . Did plaintiff know, or should be have known, that said bole was in said- floor, and that an injury might thereby result to him ?”

In respect to such question tbis instruction was given:

> “You cannot answer this question by ‘Yes’ unless you find that there was a bole in said floor as alleged, nor unless tbe plaintiff ought to have known, by tbe exercise of ordinary care, of tbe fact, nor unless be would have known, by tbe exercise of ordinary care, that an injury might result to him thereby.”

Tbe form of tbe question is not complained of, though in tbe absence of anything in tbe record relieving it from its harmful character it would be subject to condemnation as prejudicially double; in that it joined in tbe disjunctive tbe proposition as to actual knowledge and tbe one as to constructive knowledge. *Lowe v. Ring,*123 Wis. 370, 101 N. W. 698; *Mueller v. N. W. Iron Co.*125 Wis. 326, 104 N. W. 67; *Du Cate v. Brighton,*133 Wis. 628, 114 N. W. 103.

In tbe last case referred to tbe question condemned was substantially like the one here. It was worded thus:

> “Did the highway officers of the defendant town know, or in the exercise of ordinary care and diligence in the discharge of their duties ought they to have known, that the highway was so insufficient and out of repair a sufficient length of time before the accident to have repaired the same, in the exercise of ordinary diligence ?”

*651It was said a general answer to snob a question leaves the court unable to determine whether the jury united in their conclusions as to any one of the distinct propositions.

The duplicity in the question seems to be waived in this case, counsel saying, “Had the learned trial judge submitted this question (No. 5) to the jury without comment, no prejudice to defendant would have occurred.” The question itself, as framed, contained an exact condensed statement of the law.

Error is assigned because the court gave the quoted instruction, in that the proposition in the question as to actual knowledge was thereby eliminated. Counsel suggest that the proposition as to whether the respondent had actual knowledge of the hole should have been primarily passed upon by the jury. The difficulty with that position is, there was no evidence in the case that respondent had actual knowledge of the existence of the hole. The case in respect to contributory negligence rested wholly on the element of con-' structive knowledge on respondent’s part. Therefore, the court did not err in restricting the jury’s consideration of the question as was done. Moreover, such restriction rendered the double character of the question harmless. So the instruction not only was not erroneous but it cured what might otherwise have been a very troublesome defect. The better way, and the really only safe one, is not to submit a double question at all, especially one containing two material matters in the disjunctive. The latter without careful instructions, or something in the record rendering the duplicity harmless, is pretty sure to be fatal to a recovery.

Further error is assigned because the court did not submit by a question, covering singly and specially the element of proximate cause, as to whether the defendant, in the exercise of ordinary care, should have known that some one of its servants was liable to be injured by reason of the existence of the hole in the floor. That is ruled in respondent’s favor *652by *Deisewrieter v. Kraus-Merkel M. Co.*92 Wis. 164, 66 N. W. 112, and subsequent cases, bolding tbat it is proper to submit all of tbe elements of proximate canse in one question as constituting a single proposition, as was done in tbis case.

Tbe only other complaint made is tbat tbe verdict was excessive. Respondent’s counsel answered tbat by calling attention to tbe fact tbat in tbe motion for a new trial excess-iveness of tbe verdict was not assigned as a ground tberefor. Appellant’s counsel replied tbat sucb ground is included in tbe one tbat tbe verdict is contrary to tbe evidence. Tbe practice in respect to tbe matter is in harmony with tbe statute, sec. 2878, Stats. (1898), mentioning tbe grounds upon which a verdict may be set aside on motion made on tbe court’s minutes and a new trial be granted. Tbe language of tbe section specifies three grounds, viz.: *First,*tbat tbe verdict is contrary to law; *second,*tbat it is contrary to evidence ; *third,*tbat tbe damages are excessive or inadequate. Thus it will be seen, excessiveness of a verdict is made a distinct ground for setting tbe same aside and granting a new trial. Tbe precise question before us was last passed upon by tbis court in *Collins v. Janesville,*99 Wis. 464, 466, 75 N. W. 88. Tbis language was there used:

> “With no certificate tbat tbe bill of exceptions contains all tbe evidence, and no motion for a new trial on tbat ground (the one tbat tbe verdict was excessive), we are not at liberty to determine tbe question.”

Tbat is in harmony with decisions elsewhere. Tbe general rule, especially where a statute sucb as ours exists, is tbat a motion to set aside a verdict and for a new trial must specify tbe grounds, at least as specifically as they are mentioned in tbe statute, and that a specification tbat tbe verdict is contrary to tbe evidence does not raise the question tbat tbe damages are excessive. *Frank v. Kessler;*30 Ind. 8; *Cook v. Clary,*48 Mo. App. 166; *Star Brewery v. Croake,*57 Ill. *653App. 287; *Beavers v. Mo. Pac. R. Co.*47 Neb. 761, 66 N. W. 821.

The decisions in this state on the question under discussion are uniform and decisive. *Nisbet v. Gill,*38 Wis. 657; *Sloteman v. Thomas &*W. *Mfg. Co.*69 Wis. 499, 34 N. W. 225; *Collins v.*Janesville, *supra; Williams v.*Williams, 102 Wis. 246, 78 N. W. 419. The matter was very fully covered in *Sloteman v. Thomas & W. Mfg.*Co., supra, the court saying:

> “It is claimed that the damages . . . were excessive. We are inclined to think that the allowance thereof is a little too large, hut ... it cannot properly he raised on this appeal. Sec. 2878, E. S. 1878, authorizes a motion for a new trial on the minutes of the trial judge, *l. . .*because the verdict is contrary to law, or contrary to evidence, or for excessive or inadequate damages.’ The motion in this case . . . specified, as grounds therefor, that the verdict was contrary to evidence and contrary to law, hut did not claim that the damages were excessive. We think that ground for a new trial should have been specifically assigned in the motion, and that it is not sufficient merely to allege that the verdict is contrary to the evidence. The latter allegation goes to the whole verdict, while the objection that the damages were excessive goes only to a portion thereof.”

So it will be seen that we are precluded from treating the question of whether the recovery was excessive. So far as we can discover, the record in respect to matters called to our attention by appellant’s counsel does not disclose any prejudicial error.

*By the Oourt.*— The judgment is affirmed.