with his injury, for the reason that at the time the plaintiff went thereunder, there was a heavy chain hanging down from the middle beam of the structure which operated as notice to him that the passageway was not to be used.

From the exhibit and uncontroverted proof in the case it appears that the entire wharf was open for foot passengers and vehicles with the exception that near the river end was an open structure consisting of three upright posts standing in direct line at short intervals of each other which served to divide that space for a short distance into two passageways. The upright posts supported the ends of beams extending from the side of the freight house over the abutting drive and passageway, which structure, called a crane, was used to support an endless chain for loading and unloading wagons carrying articles of great weight. The appellant's contention, however, cannot prevail, for the reason that the plaintiff and his witnesses denied that there was any chain hanging there at the time or anything else tending to indicate that the passageway of this part of the wharf was not intended for use. Besides, there was testimony tending to establish that it was the custom of the plaintiff to go where he was, in looking after the fruit consigned to him. The circumstances presented purely a jury question which appears to have been properly submitted to them by the court.

An exception was taken to the refusal of the court to charge the third, fourth and sixth requests, respectively. The third request was as follows: "If you find that the plaintiff was negligent in passing at night under the crane or in not seeing the hole, when he did so pass, he cannot recover." An examination of the judge's charge that he substantially charged the request, though not in the collocation of words of the request, [703] and this he was not bound to do. Consolidated Traction Co. v. Chenowith, 58 N. J. L. 416, 34 Atl. 817, 61 N. J. L. 554, 35 Atl. 1067.

The same answer also applies to the exception to the refusal of the court to charge the fourth request.

Although the appellant argued in the brief a refusal to charge a seventh request, and while the record shows that such a request was made, it does not appear that any objection was made to the refusal of the court to charge it; nor was there any objection made to what the court said on the subject of the request.

The fact that requests to charge were presented to the court, which the court failed or refused to charge, will not make such failure or refusal the basis of an appeal, unless it

further appears that the party presenting the requests to charge made, at the time, ob-. jection to the failure or refusal of the court to charge each specific request. And where the court charges a request in other terms than those embodied in it, if counsel desire to take advantage of this, an objection should be taken to the request as charged and to the refusal to charge as requested. The new Practice act does not relieve a party from pointing out at the trial to the judge the portions of the charge to which he objects as heretofore, nor from making objection to a refusal to charge a request, if it is intended to make the same the basis of an appeal. The new Practice act has made no change in that regard, only in that bills of exception are no longer necessary.

The remaining question to be considered is the one relating to damages. The court was requested to charge: "There is no proof of loss due to lessening of earning capacity, payment of expenses for medicine or physicians except one dollar. No other damages could be awarded except for pain and suffering." The court charged the jury that the plaintiff was entitled to damages for any disability that he had sustained. This was a correct statement of the legal rule. The appellant's assumption is that New Jersey Express Co. v. Nichols, 33 N. J. L. 434, 97 Am. Dec. 722, holds that unless some proof is made of the plaintiff's income or of his earning capacity, nothing can be awarded on that account. This is a false conception of what was decided by [704] the court. The question there was whether testimony of the plaintiff's average income was admissible as guiding the jury on the question of damages for disability. It was held that such testimony was admissible; but where there is a clear disability the jury may, undoubtedly, award what in their best judgment, as reasonable men, should be awarded, irrespective of whether any definite income is proved or not. The evidence, as is said by Mr. Justice Depue in New Jersey Express Co. v. Nichols, supra (at p. 437), is "to guide them in their exercise of that discretion which to a certain extent is always vested in the jury." There was testimony which tended to show that the plaintiff was unable to do as much and as hard work as he had been able to do before the accident, and though he was afflicted with a pulmonary disease, the value of the evidence was for the jury. The judgment will be affirmed.

For affirmance-The Chancellor, Chief Justice, Swayze, Parker, Bergen, Minturn, Kalisch, Bogert, Vredenburgh, White, Heppenheimer, JJ.-11.

For reversal-None.

NOTE.

It is held in the reported case that a person going on a wharf to receive a consignment expected to arrive by a steamboat is an invitee to whom is owed the duty of maintaining the premises in a reasonable safe condition. For a full discussion of the liability for injuries to persons on or about wharves, docks, or piers, see the note to Gregg v. King County, reported ante, this volume, at page 135.

TAYLOR

V.

NORTHERN COAL AND DOCK COMPANY.

Wisconsin Supreme Court-May 4, 1915.

161 Wis. 223; 152 N. W. 465.

Wharves Personal Injury from Negligence Liability.

Decedent, the employee of a shipbuilding company, engaged in repairing a coal-laden steamer which defendant company is discharging at its dock, who is authorized to be there, and whose presence is known to defendant, which makes no objection, is not a trespasser, but is entitled to the privileges and protection of a licensee.

[See note at end of this case.] Same.

In such case the defendant company is bound to refrain from acts of affirmative negligence unnecessarily increasing the danger to decedent or rendering the premises more dangerous, at least without notifying him of such increased danger.

[See note at end of this case.] Same.

a

Defendant dock company, knowing that the employee of a shipbuilding company, licensee, was engaged in repair work on the side of the steamer under its discharging rig, and that coal often dropped when the rig was in operation, and which did not notify decedent when the rig was started, is guilty of actionable negligence.

[See note at end of this case.]

Same.

In such action evidence was held to sustain a finding that decedent was not guilty of contributory negligence.

[See note at end of this case.] Same.

In such action the refusal to submit to the jury the question whether ordinary care or the precaution usually exercised upon the dock, was exercised, and whether decedent knew that the rig had started, and that coal

Instruction Not Based on Evidence Action for Personal Injury.

In an action for the death of a licensee engaged in repairing a coal-laden steamer at defendant's discharging dock, killed by coal which dropped from the buckets, an instruction as to decedent's dullness of hearing is properly refused, where it does not appear that it had anything to do with the injury, and where, others present of sound hearing and in a position to hear did not hear defendant's alleged warnings.

Refusal of Instruction Harmless.

In an action for the death of plaintiff's decedent, a licensee, while repairing a coalladen steamer at defendant's discharging dock, from coal dropping from the discharging buckets, where the questions whether decedent was warned not to be on the dock between the hoisting rig and the boat while the hoisting apparatus was in operation were immaterial, and, if eliminated, would have left findings sufficient to support the verdict, a charge putting the burden of proof upon the defendant on the issues made on such questions is not reversible error.

Same.

In such action an instruction that, if defendant's employees knew, or ought to have known, that decedent was in a place of danger, it was their duty to have given warning, is not prejudicial error.

Appeal from Circuit Court, Douglas County: LUECK, Judge.

Action for death by wrongful act. Margaret Taylor, administratrix, plaintiff, and Northern Coal and Dock Company, defendant.. Judgment for plaintiff. Defendant appeals. AFFIRMED.

[224] The appeal is from a judgment entered November 16, 1914, for the sum of $4,510.54 damages and costs in an action brought for the death of one George Taylor.

The complaint contained four causes of action: the first, for injuries to and pain and suffering of deceased caused by the wanton and wilful negligence of the defendant; second, for the death of deceased caused by the wanton and wilful negligence of the defendant; third, for injuries and suffering caused by the negligence of the defendant; and fourth, for death caused by the negligence of the defendant.

The court below held that there was no wanton or wilful negligence shown and submitted the case to the jury on the causes of action for ordinary negligence. The jury returned the following verdict:

"(1) Was George Taylor warned not to be on the dock between the hoisting rigs and the boat? A. No.

"(2) Was said George Taylor sufficiently warned prior to the injury that he was not to work between the hoisting rig and the edge of the dock while the hoisting apparatus was in operation? A. No.

"(3) Did the defendant negligently fail to warn said [225] George Taylor of the starting of said hoisting apparatus after the repairs to the steering line had been completed? A. Yes.

"(4) If you answer the third question 'Yes,' then answer this question: Was such negligence the proximate cause of the injury and death of said George Taylor? A. Yes.

"(5) Did any want of ordinary care on the part of George Taylor contribute proximately to produce his injury? A. No.

"(6) What sum of money will compensate the widow for the pecuniary loss sustained by her in consequence of the death of said George Taylor? A. 4,000.

"(7) What sum of money will make compensation for the damages sustained by George Taylor in his lifetime in consequence of the injury received by him? A. $350." Judgment was entered in favor of the plaintiff thereon and defendant appealed.

Luse, Powell & Luse and A. E. Boyesen for appellant.

Grace, Hudnall & Fridley for respondent.

[227] KERWIN, J.-At the time of the injury complained of the defendant was the owner of a coal dock on the bay in the city of Superior and engaged in unloading coal from boats onto said dock. In carrying on the business boats loaded with coal are tied up at the end of said dock. The floor of the dock is a few feet above the water of the bay. A trestle rests on the dock six or eight feet from the end of the dock and extends above the floor of the dock about sixty feet. There are appliances used for hoisting buckets of coal from boats tied up beside the dock, and a chute or hopper into which is dumped the coal raised from the boats in said buckets. On top of the trestle is a shanty which is occupied by the person who operates the machinery. The buckets in passing from the boat to the chute pass over and sixty or seventy feet above the portion of the floor or dock which is at the bottom of the superstructure and between it and the outer or channel edge of the dock. In the usual opera

tion of unloading coal from the boats onto the dock lumps of coal fall from the buckets onto the dock and near the outer edge of the dock.

On the 4th and 5th of December, 1912, the steamer Charles Hebbard was moored at the edge of the dock of defendant for [228] the purpose of having its cargo of coal unloaded on defendant's dock and the defendant was on said days engaged in unloading the cargo. On and prior to December 5, 1912, one George Taylor was in the employ of the Superior Shipbuilding Company as mechanic and ship carpenter. Said Shipbuilding Company was at said time engaged in repairing boats when moored at the docks. Said Shipbuilding Company received an order to repair the Charles Hebbard, and in pursuance of such order directed Taylor and others of its employees to make the repairs. On the 5th of December, 1912, said Taylor was engaged in making the repairs, when a lump of coal fell from a bucket while being hoisted by defendant and struck him upon the head, from the effects of which he died.

Counsel for defendant insists that the plaintiff failed to make a case and that a verdict should have been directed for defendant on the ground that there was no proof of negligence on the part of defendant and that the evidence showed that the deceased was guilty of contributory negligence.

1. It is contended by counsel for appellant that deceased was a trespasser, or at most a bare licensee to whom the defendant owed no duty of active care. It is clear from the evidence that deceased was not a trespasser. He was lawfully at work repairing the boat at the time of the injury. He was authorized to be there and the defendant knew that he was at work repairing the boat and made no objection, so deceased at the time of injury was entitled, at least, to all the privileges and protection of a licensee. This court has often spoken upon the subject. Davis v. Chicago, etc. R. Co. 58 Wis. 646, 17 N. W. 406, 46 Am. Rep. 667; Dowd v. Chicago, etc. R. Co. 84 Wis. 105, 54 N. W. 24, 36 Am. St. Rep. 917, 20 L.R.A. 527; Hupfer v. National Distilling Co. 114 Wis. 279, 90 N. W. 191; Muench v. Heinemann, 119 Wis. 441, 96 N. W. 800; Rowley v. Chicago, etc. R. Co. 135 Wis. 208, 115 N. W. 865; Hasbrouck v. Armour, 139 Wis. 357, 121 N. W. 157, 23 L.R.A. (N.S.) 876; Brinilson v. Chicago, etc. R. Co. 144 Wis. 614, [229] 129 N. W. 664, 32 L.R.A. (N.S.) 359; Haley v. Swift, 152 Wis. 570, 573, 140 N. W. 292, 293; Lewandowski v. McClintic-Marshall Constr. Co. 155 Wis. 322, 143 N. W. 1063.

The defendant was lawfully engaged in unloading the cargo. The deceased was lawfully on the boat repairing it. Under the decisions of this court the defendant was

bound to refrain from acts of affirmative negligence. It was bound to so act as not to unnecessarily increase the danger to deceased or render the premises more dangerous, at least without notifying deceased of such increased danger. The rule is that one cannot be actively negligent toward a nere licensee. Hupfer v. National Distilling Co. 114 Wis. 279, 90 N. W. 191, at p. 290.

The licensor owes to the licensee the duty to refrain from acts of active negligence rendering the premises dangerous. Brinilson v. Chicago, etc. R. Co. 144 Wis. 614, 129 N. W. 664, 32 L.R.A. (N.S.) 359.

The evidence shows that deceased had repairs to make on both sides of the boat. He had worked some on the port side and had started to do work on the starboard side under the unloading rig while the defendant was making some repairs on the unloading rig, which took over an hour to make, dụring which time the unloading rig was not running and it was safe for deceased and his crew to do the work. There is credible evidence that the defendant knew that deceased and his crew were at work on the starboard side of the boat and under the unloading rig where the coal dropped when the unloading rig was in operation and that deceased was not notified when the rig was started immediately before the coal fell upon him. The jury found that deceased was not warned and we think the findings are supported by the evidence.

We think the evidence was sufficient to show negligence on the part of defendant. Deceased and his crew were repairing the boat under the hoisting rig while the hoisting crew was repairing the steering line. Deceased was entitled to be [230] warned before the rig was again started, and the jury found upon sufficient evidence that he was not and that such failure to warn was the proximate cause of the injury.

It is further contended that the evidence establishes that deceased was guilty of contributory negligence. The jury acquitted him of contributory negligence, and we think there is ample evidence to support the finding. Had it been established that deceased continued to work at the place where injured after being warned and knew the danger, the situation would be different. There is evidence that only a few buckets had been hoisted after the steering line had been repaired, and that about two buckets a minute were hoisted; that after the steering line had been repaired the rig started, and after three or four buckets had been hoisted the rig was again stopped to allow the "bleeders" to be fixed, and deceased was injured by coal falling from the first bucket that was hoisted after the "bleeders" were fixed and the rig started.

We are convinced that there was no error in refusing to direct a verdict for defendant. 2. Counsel assigns thirty errors. We shall not attempt to discuss them at length. Perhaps they might be disposed of properly by the statement that we find no prejudicial error in the record. Northern Land Co. v. Wisconsin Live Stock Assoc. 160 Wis. 203, 151 N. W. 256.

The first assignment of error is the refusal to direct a verdict, which has been already disposed of.

The second and third assignments are to the effect that the court erred in refusing to submit to the jury whether Anderson [the hoister] exercised ordinary care or the precaution usually exercised upon the dock. There was no error in refusing these requests. They asked for a finding evidentiary and did not cover any fact put in issue by the pleadings, and moreover the matter involved was sufficiently covered by the verdict submitted and the charge.

The fourth assignment of error is the refusal of the court [231] to submit the question whether the deceased, Taylor, knew the rig had started and coal was being hoisted before the hoisting of the particular bucket from which coal fell which caused his injury. There was no error in refusing to submit this question for the reasons stated under the second and third assignments. Steber v. Chicago, etc. R. Co. 139 Wis. 10, 120 N. W. 502; Wawrzyniakowski v. Hoffman, etc. Mfg. Co. 146 Wis. 153, 131 N. W. 429; Anderson v. Sparks, 142 Wis. 398, 125 N. W. 925; Lomoe v. Superior, Water, etc. Co. 147 Wis. 5, 132 N. W. 623; Vogel v. Herzfeld-Phillipson Co. 148 Wis. 573, 134 N. W. 141.

The fifth, sixth, seventh, eighth, ninth, tenth, eleventh, and twelfth assignments may be considered together and relate to the refusal of the court to instruct the jury as requested by counsel for defendant. These requests were to the effect (a) that defendant was under no obligation to warn deceased; (b) that deceased was a man of experience and presumed to know the dangers; (c) that defendant was in no way interested in deceased being upon the dock and under no obligation to take active measures for his safety; (d) that deceased was bound to look after his own safety; (e) that there is no evidence that defendant's employees knew deceased's hearing was not acute; (f) that if deceased was hard of hearing it was his duty to govern himself accordingly; (g) that positive testimony is ordinarily entitled to more weight than negative. There was no error in the refusal to give these requests at least no prejudicial error. So far as the requests touching deceased's familiarity with the business is concerned the matter was sufficiently covered by the charge given. On the requests

as to duliness of hearing it does not appear that dullness of hearing had anything to do with the injury, because others present who were not dull of hearing and who were in position to hear did not hear the alleged warnings. Moreover the question was covered by the charge given. The request under (g) was sufficiently [232] covered by the general charge, which was substantially correct. Van Salvellergh v. Green Bay Traction Co. 132 Wis. 166, 111 N. W. 1120; Coel v. Green Bay Traction Co. 147 Wis. 229, 133 N. W. 23; Brown v. Milwaukee Electric Ry. etc. Co. 148 Wis. 98, 133 N. W. 589; Marinette v. Goodrich Transit Co. 153 Wis. 92, 100, 140 N. W. 1094.

Assignments 12 and 13 refer to instructions of the court which it is claimed put the burden of proof upon the defendant as to questions 1 and 2 of the special verdict. The charge does not specifically put the burden of proof upon the defendant. It does not state upon whom the burden rests, but even if it did there was no reversible error, since questions 1 and 2 might be eliminated from the verdict and the balance of the verdict would support the judgment. In fact it is practically conceded on both sides that questions 1 and 2 are immaterial. They may therefore be regarded as surplusage. Milwaukee Trust Co. v. Milwaukee, 151 Wis. 224, 138 N. W. 707.

Error is assigned because the court in-. structed the jury in effect that if the employees of the defendant knew deceased was in a place of danger, or ought to have so known, it was their duty to give warning. There was no prejudicial error in this part of the charge. Rowley v. Chicago, etc. R. Co. 135 Wis. 208, 115 N. W. 865; Hogan v. Chicago, etc. R. Co. 59 Wis. 139, 17 N. W. 632.

Other errors assigned we do not regard of sufficient importance to require treatment. We have carefully examined the record and all the errors assigned and are convinced that no prejudicial error was committed.

BY THE COURT.-Judgment is affirmed.

A motion for a rehearing was denied, with $25 costs, on October 5, 1915.

NOTE.

The rule that the owner of premises owes to a licensee the duty to refrain from acts of active negligence rendering the premises dangerous is applied in the reported case to the owner of a coal dock whose breach of duty caused the death of the plaintiff's intestate. The cases on this topic are collected in the note to Gregg v. King County, reported, ante, this volume, at page 135.

HUNT

V.

LEWIS.

Vermont Supreme Court-May 9, 1914.

87 Vt. 528; 90 Atl. 578.

Fraud Action for Deceit - Procuring Personal Property.

The rules and principles governing actions for deceit in the sale of real or personal property apply to actions for procuring personal services by fraud.

Representations as to Future.

To constitute actionable fraud in the sale of property, the representations must be of existing facts relating to the subject matter of the contract, made by the vendor as inducements, which are false and known by the vendor to be false, or made by him as of his own knowledge without knowledge as to the facts, which are not open to knowledge of or known by the other party, and are relied on by him in making the purchase to his damage; representations as to future facts or promises, or matters of opinion, not constituting actionable fraud.

[See 18 Am. St. Rep. 556.] Inducing Performance of Personal Services.

A declaration for fraud in procuring the services of an attorney, which alleged in the first count that the defendant represented that he would pay for the services, knowing that he would not have the money with which to pay and intending to deceive the plaintiff, and in the second count that the defendant falsely and maliciously represented that he would and could pay for the services, not knowing that he could or would have the money with which to pay, charges representations or promises as to future and not as to existing facts, and therefore does not state a cause of action.

[See note at end of this case.]

Same.

An amended count in the same declaration, which alleged that defendant had the money with which to pay for the services and he so informed the plaintiff and promised to pay for them, but did not intend to do so, merely alleges a promise, and not a misrepresentation as to an existing fact, and is insufficient.

[See note at end of this case.]

Exceptions from Lamoille County Court: WATERMAN, Judge.

Action for fraud. B. A. Hunt, plaintiff, and C. S. Lewis, defendant. Judgment for defendant. Plaintiff alleges exceptions. The facts are stated in the opinion. AFFIRMED.