which he knows by ordinary observation, and from such appliances, which are simple in

that he was obliged at times while on the scaffold to exert considerable power on his bar pushing toward the wall, and this might | their construction, and not worn out, broken, by jerking, frequent repetition, and great exertion gradually work the iron bolt up out of its socket. But, in any event, the case presents the question of a master conducting his work in his own way with simple appliances made, placed in position, and fastened up and easily understood by plaintiff and his fellow workmen.

There was no latent or concealed defect in these appliances. They were made of no defective material, and their construction and use were obvious. The plaintiff chose to enter into, and continue in, the service with full knowledge of this mode of carrying on the work. He, with his fellow workmen, was intrusted with the placing of the brackets and the construction of this scaffold, and he

or defective. This is stating the rule for the instant case, and rather more strongly against the employer than the authorities warrant. Without going to the length of disregarding established rules, we can see no liability on the part of defendant. Peffer v. Cutler, 83 Wis. 281, 53 N. W. 508; Mielke v. Railway Co., 103 Wis. 1, 79 N. W. 22, 74 Am. St. Rep. 834.

Judgment reversed, with directions to dismiss the complaint.

KERWIN and BARNES, JJ., dissent.

BERGER v. ABEL & BACH CO.

1. MASTER AND SERVANT (§ 270*)—INJURIES TO SERVANT-EVIDENCE.

In an action for injuries to a servant, evidence by plaintiff that the machine causing the injury was defective was admissible. Servant, Dec. Dig. § 270.*] [Ed. Note.-For other cases, see Master and

2.

APPEAL ANd Error (§ 882*)-REVIEW-ES

TOPPEL TO ALLEGE ERROR.

The action of the court, at defendant's request, in striking out certain testimony of plaintiff, and instructing the jury to disregard it, was not error of which he could complain. [Ed. Note. For other cases, see Appeal and Error, Cent. Dig. 88 3591-3610; Dec. Dig. § 882.*]

was at full liberty, and had ample opportuni- (Supreme Court of Wisconsin. Jan. 11, 1910.) ty, not only to exercise his judgment as to the safety or sufficiency of this mode of hanging the brackets, but also to brace up this bracket by such additional or supplementary contrivances as common sense would suggest, including, if necessary, the placing of a scantling as a brace from the floor to the outer side of the bracket. This would constitute assumption of risk if we were able to find any omission of duty on the part of the master. It is uncontroverted that instructions were given out to the workmen generally that the upright arm or side of the bracket should also be nailed to the sheeting. Plaintiff did not hear these instructions, although 3. MASTER AND SERVANT (§ 234*)-INJURIES he appears to have been present and one of a TO SERVANT- - CONTRIBUTORY NEGLIGENCEgroup to whom they were communicated. KNOWLEDGE OF DANGER. But it appears that this precaution of nail-hand under the die of a leather stamping maWhere it was an employé's duty to put his ing the upright side of the bracket against chine and remove the leather after the ram plate the sheeting in addition to inserting the iron had descended, and it would not have been hurt bolt in its socket as before described was at except for a secret danger, he was not guilty the work under consideration sometimes tak- of contributory negligence where he neither en and sometimes omitted. It was omitted knew, nor ought in the exercise of ordinary care to have known, of the danger. on the occasion of placing the bracket the fall of which caused the plaintiff's injury. Under these circumstances, there was no negli- | gence shown on the part of the employer, but rather a lack of due precaution on the part of the plaintiff, perhaps not amounting to contributory negligence in law, but potent to sustain a finding of contributory negligence had such finding been made.

We prefer to rest this case upon the rule that no negligence on the part of the master is shown. For what has it done or omitted? It is not negligence upon the part of the master to lay out a particular mode of doing his work, or to furnish therewith particular appliances for doing his work, where neither such mode nor such appliances are inherently or latently dangerous. When the employé knowing of such mode and of such appliances enters the service and continues in the service of his employer, he assumes the ordinary risks of such service arising from such mode

[Ed. Note. For other cases, see Master and Servant, Cent. Dig. §§ 706-709; Dec. Dig. § 234.*]

4. TRIAL (§ 352*)-SPECIAL VERDICT-FORM OF INTERROGATORIES.

knew, or ought in the exercise of ordinary care A question to the jury whether defendant to have known, of a danger, which was answered "Yes," was erroneous in form.

[Ed. Note. For other cases, see Trial, Cent. Dig. §§ 840-845; Dec. Dig. § 352.*]

5. APPEAL AND ERROR (§ 1032*)-HARMLESS ERROR-BURDEN OF SHOWING PREJUDICE.

As under the express provisions of Laws 1909, p. 205, c. 192, it must affirmatively appear, to render a judgment reversible, that error therein has affected the substantial rights of the party complaining, the error in the form of interrogatory to the jury whether defendant knew, or ought in the exercise of ordinary care to have known, of a danger was not prejudicial, where there was no evidence that the defendant had positive knowledge.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. 88 4047-4051; Dec. Dig. § 1032.*]

Where the special verdict submitted by the court covered the issues as fully as necessary, there was no error in the refusal to submit other questions.

[Ed. Note. For other cases, see Trial, Cent. Dig. 834; Dec. Dig. § 351.*]

6. TRIAL ( 351*)-SPECIAL VERDICT-ISSUES ( roller sinks and allows the ram plate to deTO BE SUBMITTED. scend to its normal position. If the power is left on, this operation is repeated about every four seconds regularly. In order, however, to stop the press after the operation, the hand lever is thrust to the right and the clutch removed. The proper time to do this is when the ram plate has reached its lowest point, because at this time the heavy, irregular, projecting portion of the cam is also at its lowest point, and will not oscillate back and forth, or will only slightly oscillate. If, however, the lever be thrown

7. EVIDENCE (§ 207*)-ADMISSIONS.

Where an employé served a written notice of injury, as required by St. 1898, § 4222, subd. 5, fixing his damages at $5,000, in his action therefor, commenced one month later for $7,200, the notice was admissible when offered in evidence by defendant as an admission as to the amount of the damages.

[Ed. Note. For other cases, see Evidence, and the power be taken off just as the ram Dec. Dig. § 207.*]

Appeal from Circuit Court, Milwaukee County; J. C. Ludwig, Judge.

Action by Carl Berger against the Abel & Bach Company. From a judgment for plaintiff, defendant appeals. Modified and affirmed. Personal injuries. The plaintiff had his left hand crushed while operating an embossing machine in the defendant's trunk factory June 25, 1906. He was 24 years of age at the time. In his complaint he charged that the machine was defective, and that he was not warned of the danger when set at work. Both grounds of negligence were put in issue by the answer, and contributory negligence was alleged.

plate leaves the die, the great weight of the cam will cause it to suddenly drop, and it will oscillate back and forth several times like a pendulum, and in response to this oscillation the ram plate will jump, going back almost or quite to the die the first time, and making two or three more lesser jumps. The same effect follows, but in a less degree, if the power be thrown when the ram is halfway down. The cam and its mechanism are not visible from the front of the machine. The proper way to operate it is to place the wet leather on the ram plate (which is some two feet square) and then pull the lever, and when the revolution is complete, thrust back the lever. When operated in this way there is no second return There was little dispute as to the essen- of the ram plate, and the hand may then tial facts. The plaintiff had been a hand be inserted to remove the stamped leather worker at trunkmaking in Austria, and came and put in another sheet, when the lever to Milwaukee in 1903, and worked first at a may be again pulled and the operation repeattannery, then at a cement block factory, then ed. When thus operated, there is a slight as carpenter's helper, and then obtained em- motion or "floating" of the ram plate after ployment at the defendant's factory on the it returns to its lowest point and the power morning of the accident. He was sent at is removed, caused by the slight oscillation once to operate a machine for embossing of the cam which takes place. An employé leather. This machine is about five feet named Schrubbe was sent to show the plainLeather high, and nearly or quite three feet in width. tiff how to operate the machine. The die faces downward and is stationary. gussets were being stamped, and Schrubbe The sheet of leather to be pressed is placed operated the machine for half an hour or on a large platen or ram plate about 24 more, and told the plaintiff to watch and inches below the die, which by the applica- see how he did it. Neither he nor any one tion of steam power is caused to rise up and else told plaintiff of the effect which would press the leather against the die. The pow- follow if the lever was thrown before the er is applied by means of a clutch, and the ram plate had fully descended, but Schrubbe clutch is controlled by a hand lever at the undoubtedly always threw it at the right right-hand side of the machine as the op- time. After this plaintiff worked successfulerator stands in front of it. To start the ly for half an hour or so in the forenoon, machine the operator pulls this lever to- and in the afternoon continued to work on wards him to the left. This causes the the machine (no one else being with him, as clutch to operate upon a gear wheel, to it was supposed he knew how); and, after which is attached an irregular and heavy working an hour or so, his hand was crushcam of three-cornered shape. As the pro-ed by a return motion of the ram plate, jecting portion of this irregular cam turns upward, a cam roller above it is also forced upward, and this in turn, through a lever and link, moves the ram plate upward against the die. The pressure is thus accomplished by the first half of the revolution of the A special verdict was returned by which cam gear. As the last half of the revolu- the jury found: (1) The plaintiff was intion commences, the projecting portion of jured by getting his left hand crushed bethe cam turns downward, and the cam tween the die and the ram plate; (2) when

while he was reaching in and attempting to remove the leather after it was embossed. Amputation of all the fingers became necessary, leaving only the index finger and thumb.

the power was shut off before the plate had fully descended, the plate was liable to go upward of its own momentum so close to the die as to become dangerous to an employé performing the work plaintiff was doing; (3) the defendant, before the accident, knew that such action of the machine was liable to occur and increase the ordinary hazards of operation of the machine; (4) the plaintiff did not know, nor ought he in the exercise of ordinary care to have known, that such action of the machine was liable to occur if the power was shut off before the ram had descended; (5) the defendant knew, or ought to have known, that plaintiff was unacquainted with such action of the machine and the enhanced hazard thereby resulting; (6) the defendant did not sufficiently instruct the plaintiff so that he should, in the exercise of ordinary care, have known or appreciated the enhanced hazard; (7) the omission to so instruct was the proximate cause of the injury; and (8) the plaintiff's damages were $6,502. From judgment on the verdict for the plaintiff the defendant appeals.

Boden & Beuscher, for appellant. Kronshage, McGovern & Fritz (Arthur F. Belitz, of counsel), for respondent.

WINSLOW, C. J. (after stating the facts as above). Very many errors are assigned, but only those deemed material will be discussed, and some of them only in a general

way.

The plaintiff's complaint charged that the embossing machine was defective, and much expert evidence was introduced tending to show that there were appliances which could be attached to such a machine, and which would prevent the oscillation of the cam, when the power was thrown off before the cam had fully descended. At the close of the plaintiff's case, however, the trial court held that there was really no defect in the machine; that it was constructed as was intended; that the only ground for a claim of negligence was in the failure to instruct concerning the proper time to throw the power off, and struck out all of the expert testimony concerning the possibility of the attachment of appliances to prevent oscillation of the cam. There was no error in permitting the plaintiff in good faith to attempt to prove that this condition of the machine constituted a defect, and there was certainly no error in striking out the testimony which had been introduced in this attempt, and instructing the jury that it was to be disregarded; in fact this was done at the defendant's request.

there was no danger, and the hand might freely be inserted (as it had to be) to remove the stamped leather; but if the lever was thrown a second or two earlier, the ram plate would reascend with great force almost, or quite, to the die. It is also undisputed that the mechanism of the cam and ram plate is not visible from the front of the machine where plaintiff stood; that the plaintiff was inexperienced with such machines, and that he told the defendant's superintendent so before he was set at work; that while he was shown how to operate the machine by practical illustration by another operative, he was never told in words when was the proper time to pull the lever, nor what the result would be if it was pulled at the wrong time, but left to gather these facts from watching the operation. In addition to these palpably undisputed facts the court below held, after the close of the plaintiff's case, that the accident could have happened in no way except by the plaintiff's prematurely throwing the lever, and our consideration of the evidence leads us to the same result.

So we start with these facts: The plaintiff was inexperienced, and defendant knew it; he was set at work before a machine in whose operation there was a secret danger of which defendant knew; he did not have actual knowledge of this danger, nor was he told of it, but was required to watch the correct operation of the machine by another, and his hand was in fact caught and crushed by reason of this secret danger while he was engaged in a perfectly proper act. Really the only questions left were whether his instruction was sufficient so that he knew, or ought to have known, of the secret danger when he prematurely threw off the power, and, if not, whether the defendant ought to have known that he was unacquainted with the secret danger, and finally whether the failure to instruct was the proximate cause of the accident.

The first of these questions was answered in the negative by the jury. They found that he neither knew, nor ought to have known, of the danger resulting from premature throwing off of the power. True, the question was double, and, if answered in the affirmative might be subject to criticism; but, being answered in the negative, every juryman must have found, both that he did not know, and that he ought not to have known, before it could be so answered. This covered the whole question of contributory negligence. It was the plaintiff's duty to put his hand under the die and remove the leather after the ram plate had descended. Consequently It was proven absolutely without dispute his hand was there in the course of his duty that the machine in question was a machine and under no circumstances would it have liable to make a dangerous motion when the been hurt except for the secret danger, so lever was thrown just as the plate was he could only be negligent because he put about to descend. If the lever was thrown his hand there when he either knew, or ought

Buckley, a copartnership, payable to the orCOMSTOCK v. BUCKLEY et al. der of Thomas F. Somers, at six months date, (Supreme Court of Wisconsin. Jan. 11, 1910.) with 6 per cent. interest and indorsed by 1. BILLS AND NOTES (8 426*)-SATISFACTION Thomas F. Somers, Charles Buehner, John OF INSTRUMENT BY PERSON PRIMARILY LIA-Graf, Peter J. Somers, John Zilg, C. S. OtBLE-EFFECT.

Under the common law and Negotiable Instruments Law (Laws 1899, p. 726, c. 356) 1679, where an instrument, upon which several are liable, some primarily and some secondarily, is satisfied by him who is primarily liable, a complete discharge results, and it no longer has legal existence.

[Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. §§ 1223-1232; Dec. Dig. § 426.*]

2. BILLS AND NOTES (§ 362*)—Holder in DUE COURSE-RIGHTS OF.

jen, H. F. Bosworth, and W. E. Haskin in the order aforesaid. It appeared that said note, so indorsed without any consideration to the indorsers, but for the accommodation of a mining company in which they were all concerned and for which the two Buckleys were financial agents, was delivered to Henry Herman, as a note broker, to negotiate and pay over the proceeds to said agents; that said Herman during the life of said note did dispose of the same fraudulently, as claimed, to one Wight, an innocent holder, who paid value to Herman, and concededly obtained good title to the note. Hermin, it is claimed, applied the proceeds to his own use without informing defendants that he had disposed of the note. At maturity the note was protested for nonpayment, and shortly thereafter, October 25, 1900, was paid by Henry Herman and returned to his possession. Thereafter, November 27, 1900, Herman sold In an action on a promissory note, where said note for value approximating its face the evidence either received or offered was con- to the plaintiff, who had notice of its dishonflicting whether the transferee, a note broker, acted fraudulently in negotiating it, the ques-or, the certificate of protest being attached, tion was for the jury.

Under the common law and the direct provisions of Negotiable Instruments Law (Laws 1899, p. 709, c. 356) § 1676-28, a holder who derives his title through a holder in due course, and who is not himself a party to any fraud, duress, or illegality affecting the instrument, has all the rights of such former holder in respect of all parties prior to such holder.

[Ed. Note. For other cases, see Bills and Notes, Cent. Dig. § 937; Dec. Dig. § 362.*] 3. BILLS AND NOTES ($ 537*)-PROMISSORY NOTE-ACTION ON-CONFLICTING EVIDENCE -QUESTION FOR JURY.

and who at the same time entered into an

[Ed. Note.-For other cases, see Bills and agreement with Herman for a definite date of Notes, Cent. Dig. § 1879; Dec. Dig. § 537.*] 4. BILLS AND NOTES (§ 537*)-PROMISSORY NOTE-ACTION ON-QUESTION FOR JURY.

In an action on a promissory note, where it was shown that the transferee, a note broker, disposed of it to an innocent purchaser and upon protest at maturity it was paid by the broker, and returned to his possession, the question whether his payment was an attempted purchase by him individually or payment of the note on behalf of his principal was for the jury.

[Ed. Note. For other cases, see Bills and Notes, Cent. Dig. 1885; Dec. Dig. § 537.*] 5. BILLS AND NOTES (§ 443*)—TRANSFEREE OF NOTE-RIGHT TO BRING ACTION.

extension of the time of payment. At the close of the trial, upon these facts, the court directed a verdict for the plaintiff for the From judgment on such verfull amount.

dict the defendants appeal.

Kronshage, McGovern, Goff, Fritz & Hannan, for appellants. Roemer & Aarons (HenJ. Killilea, of counsel), for respondent.

DODGE, J. (after stating the facts as above). The direction of a verdict for the plaintiff is sought to be supported, first, on the authorUnder Negotiable Instruments Law (Laws 1899, p. 709, c. 356) § 1676-28, providing that ity of Marling v. Jones, 138 Wis. 82, 119 N. a holder deriving title through a holder in due W. 931, for that, as asserted, the accommocourse, and not himself a party to any fraud, dated party, and Herman, as its agent, had duress, or illegality affecting the instrument, actual authority, by force of the note itself, has all the rights of such former holder as to all parties prior to such holder, and St. 1898, to negotiate it, which authority was not lim§ 2605, providing that actions must be prosecut-ited by the maturity of the note. That rule ed in the name of the real party in interest, of law was unambiguously adopted by this where a transferee of a note parted with value on the faith of a note, he would have a right therein as security, and, where he transferred his rights to another, his transferee could maintain an action on the note in the absence of actual participation by the latter in some fraud. [Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. § 1380; Dec. Dig. § 443.*] Appeal from Circuit Court, Milwaukee County: Lawrence W. Halsey, Judge.

court upon weight of authority after carefully reviewing a conflict of decision elsewhere. The right of the creditor was not predicated upon an innocent holder's immunity from equities as between the parties, but upon the view that no equities existed to defeat such a note; that the accommodation makers had

by proper construction of their instrument agreed to pay any one who should lend the amount of the note to the accommodatee ei

Action by E. G. Comstock against James O. Buckley and others. Judgment for plain-ther before or after maturity. This case tiff, and defendants appeal. Reversed and remanded.

presents a very marked difference in facts, for here, conceding that Herman acted within his authority, the accommodated party had once been accommodated when Wight lent

Action upon a promissory note, $2,500, dated April 21, 1900, signed by J. O. & W. S.