Leiser vs. Kieckhefer.

LEISER, Respondent, vs. KIECKHEFER, Appellant.

December 16, 1896-January 12, 1897.

Court and jury: Directing verdict.

The court is not justified in directing a verdict unless, looking at the facts in evidence in the light most favorable to the opposite party, the jury would not be justified in finding a verdict in his favor.

APPEAL from a judgment of the circuit court for Milwaukee county: D. H. JOHNSON, Circuit Judge. Reversed.

The plaintiff made his promissory note for $1,500 to the defendant, who sold it to one Schram. The note was not paid at maturity, and, for the purpose of procuring an extension of time, the parties made their joint and several note, for the same sum, to Schram. The plaintiff paid this latter note to Schram, and brings this action to recover from the defendant the sum which he paid to Schram. His claim is that the original note was given by him to the defendant without consideration, and for the defendant's accommodation. The defendant denies this, and asserts that the original note was given by the plaintiff to him as and for the purchase price of his (the defendant's) interest in a certain quarry, which the parties had been operating together as partners. The issue made by the pleading, and which was contested on the trial, was whether the original note was accommodation paper, given without consideration. On that issue each party testified, for himself, directly and positively, to a state of facts directly opposed, as above indicated; and each party was, to some extent, corroborated by evidence of collateral facts, more or less persuasive. A written instrument, purporting to be an absolute assignment by the defendant to the plaintiff of the defendant's interest in the quarry, with a right to repurchase it, at any time within six months, for $1,500 and interest, was put in evidence. The

Leiser vs. Kieckhefer.

plaintiff testified that this instrument was given him as security against his being called upon to pay the note. The defendant testified that it was intended to be what it appeared on its face to be,-an absolute sale of the property. There was, also, the testimony of one witness, to the effect that plaintiff had told the witness that he had bought defendant's interest in the quarry. The court directed a verdict for the plaintiff for the full amount claimed. The appeal is from a judgment entered on that verdict.

For the appellant there was a brief by Winkler, Flanders, Smith, Bottum & Vilas, and oral argument by J. G. Flanders.

For the respondent the cause was submitted on the brief of Thos. H. Dorr.

NEWMAN, J. The only question discussed upon the hearing was whether this was a proper case for the direction of a verdict. The settled rule is that, to justify the direction of a verdict on a question of fact, the evidence must be clear and uncontradicted, and all one way. The court must look at the facts in evidence in the most favorable light for the other party in which the jury would be at liberty to find them, and then be able to say that there is no evidence which would justify a verdict in his favor. If there is some testimony fairly tending to support the opposite contention, it is a question for the jury. The question on which side is the preponderance of the evidence — is always for the jury. So that, ordinarily, affirmative testimony, covering the issue, of one witness alone, and he a party and contradicted, is sufficient to take the case to the jury. It is the function of the jury to weigh the testimony. Lawrence University v. Smith, 32 Wis. 587; Spensley v. Lancashire Ins. Co. 54 Wis. 433; Jackson v. Jacksonport, 56 Wis. 310; Calder v. Crowley, 74 Wis. 157; O'Brien v. C. & N. W. R. Co. 92 Wis. 340. It cannot be said, in this case, that the evidence on the plaint

Erdman vs. Illinois Steel Co.

iff's side is uncontradicted, nor that the evidence in the case is all one way, nor that the evidence would not support a verdict for the defendant. The case should have been submitted to the jury.

By the Court. The judgment of the circuit court is reversed, and the cause remanded for a new trial.

1537

ERDMAN, Respondent, vs. ILLINOIS STEEL COMPANY, Appel

lant.

December 16, 1896—January 12, 1897.

Master and servant: Personal injuries: Defective machinery: Continu ing in service after promise to repair: Assumption of risk: Objection to continuing work: Evidence: Court and jury.

1. A protest by an employee against continuing in the employment of
the master because of some special risk attending it; a promise by
the master to remove the danger within a reasonable time; and a
continuance of such employment in consideration of such prom-
ise, relieve the employee from the charge of contributory negli
gence, if injured because of such danger within such time, unless
the risk is so obvious and immediate that serious injury may prob-
ably result from a continuance of the work.

2. The danger of a saw, four feet in diameter with a crack three inches
from the outside, flying to pieces when let down upon large bars
or plates of iron while running at a speed of 1,700 revolutions per
minute with sufficient force to cut the bars or plates in two, is
held to have been so obvious, immediate, and constant that an
employee engaged in operating it was guilty of negligence in con-
tinuing at his work with knowledge of the defect, even in reliance
upon the promise of the master to remedy it; and the unsupported
testimony of the employee, thirty-five years old and of fourteen
years' experience with machinery, that he did not know of the ex-
istence of such danger, is insufficient to support a finding of the
jury that he neither knew nor ought to have known of it.
3. The testimony of the employee in such case that he asked his vice-
principal if he would change the saw; that he did not know that
he objected to going to work, or that any one did; that he was

Erdman vs. Illinois Steel Co.

paid by the ton and would have lost a part of a day's work if he had not commenced at that time; and that he asked if the saw was to be changed because he wanted to change his coat,-is held to show that the employee did not object to going to work with the defective saw.

APPEAL from a judgment of the superior court of Milwaukee county: R. N. AUSTIN, Judge. Reversed.

The complaint alleges, in substance, that on the 22d day of February, 1894, plaintiff was in the employ of defendant as shear man; that his duties consisted in assisting in the operation of sawing and shearing heated bars and plates of iron by the use of a large circular saw, about four feet in diameter; that the saw was set in a frame, and so adjusted that, when in motion, by pressing on a lever, it could be lowered down upon the iron placed under the saw to be cut; that, before operations commenced on the day in question, the attention of the foreman was called to the fact that the saw was cracked, defective, and unfit for use; that plaintiff and his co-employees protested against working with the defective saw, but, relying on the assurance of the foreman that it was safe, and that he would furnish a new one after they had worked off one heat, they went to work; that soon thereafter, while plaintiff was with due care engaged at his regular duties, by reason of the aforesaid defective condition of the saw, it broke, and the shaft upon which it ran left its bearings, and fragments of the saw and the shaft struck plaintiff upon the body, by reason whereof he was wounded, bruised, his left leg was shattered, and he was otherwise severely injured. The injuries were set forth in detail, and damages claimed to the amount of $50,000. The answer of defendant admitted the allegations of the complaint respecting the employment of plaintiff and the injury, put in issue all other allegations, and alleged contributory negligence on the part of plaintiff. A special verdict was rendered, upon which judgment was entered in plaintiff's favor, and

Erdman vs. Illinois Steel Co.

defendant appealed, basing such appeal on errors raised by exceptions preserved in the record, which will be noticed in the opinion.

For the appellant there were briefs by Van Dyke & Van Dyke & Carter, and oral argument by W. E. Carter.

For the respondent there was a brief by C. J. Faber, attorney, and Austin & Fehr, counsel, and oral argument by W. H. Austin.

MARSHALL, J. The jury found specially, among other things, that the saw was defective, to the knowledge of John Blank, who was charged with the duty of seeing that it was kept in proper condition; that John Arndt was the acting foreman; that such foreman, with knowledge of such defect, directed plaintiff and his associates to run one heat, informing them that he would then have the saw changed; that plaintiff went to work relying upon such promise; that defendant was guilty of negligence which proximately contributed to the injury; that plaintiff was not guilty of any such negligence; and that he did not have sufficient knowledge and experience to enable him to know the risk of working with the defective saw prior to his injury. The verdict was challenged as contrary to the evidence, and the ruling of the circuit court in that regard, among others, is before us for review.

That the saw was cracked and defective, to the knowledge of plaintiff, appears clearly from the evidence, and is alleged in the complaint. The proof shows that he was a man of large experience with such machinery, and that he had worked fourteen years in the mill where he was injured, and four years in operating the machine where the accident occurred. His evidence, bearing on his knowledge of the danger, and his justification for working notwithstanding such danger, is substantially as follows: "There were small rollers to carry the iron under the saw.

Then the saw was