Parker v. Fairbanks-Morse Mfg. Co. 130 Wis. 525. to be amputated at the junction of the upper with the middle third of the femur. During the period of several months in the hospital plaintiff suffered much pain and troublesome sores developed. After leaving the hospital in January following the accident he was delirious at times as the result of his pain and suffering and suffered much from sleeplessness. His condition up to the time of the trial has necessitated much care and nursing, and he will require such assistance for an indefinite period. It is uncertain whether he will be able to make use of an artificial limb and to what extent he will be able to employ artificial aids to locomotion. Before the accident plaintiff's health was apparently good. been active as a laborer and contractor. His earnings from his business ranged from $1,200 to $1,500 a year. At the time of the injury he was sixty-four years of age. The jury found by general verdict for the plaintiff, and assessed his damages at $13,500, for which sum and costs judgment was awarded him. This is an appeal from such judgment. He had always For the appellant there was a brief by Vilas, Vilas & Freeman, attorneys, and E. M. Ashcraft, of counsel, and oral argument by E. P. Vilas. For the respondent there was a brief by Fethers, Jeffris & Mouat, and oral argument by M. G. Jeffris and M. O. Mouat. SIEBECKER, J. Appellant urges an exception to the court's instruction pertaining to appellant's duty of furnishing respondent a reasonably safe place to perform his duties as a servant. The instruction is criticised as not submitting to the jury appellant's measure of duty in this respect by informing the jury "that it is the duty of [appellant] to use ordinary care in constructing a reasonably safe place," and in omitting to direct them that such duty is an absolute one and is not dependent on the degree of care exercised by the master in performing it. The rule contended for is unquestionably VOL. 130-34 correct. Parker v. Fairbanks-Morse Mfg. Co. 130 Wis. 525. Howard v. Beldenville L. Co. 129 Wis. 98, 108 N. W. 48. Whether the court prejudicially erred in the instruction given need not be considered in view of our conclusion in the case. The instruction complained of attempted to inform the jury of the defendant's duty as to furnishing a reasonably safe place for plaintiff to perform his duties as defendant's servant, and they were to determine from the evidence adduced whether defendant had failed, as charged in the complaint, to perform this duty to plaintiff. Submission of this inquiry to the jury is required only if there be credible evidence in the case that would justify the jury in drawing the inference that defendant, when the accident occurred, either had or had not performed its duty to plaintiff of furnishing him a reasonably safe place to do his work. If the evidence permits of no other inference than that defendant failed in this duty to plaintiff, it devolved on the court to determine that question as matter of law, leaving nothing for the jury to pass upon in respect to it. Under such a state of the evidence, submission of the issue to the jury under erroneous instructions is immaterial error, because it did not affect the rights of the parties arising from such undisputed state of the evidence. We are persuaded that there can be but one inference from all the credible evidence before us respecting defendant's neglect to furnish plaintiff a reasonably safe place to work. The facts and circumstances bearing on this question all point one way, namely, that the scaffolding was so defectively constructed that it was not a reasonably safe place for plaintiff to perform the duties assigned him. From the foregoing statement of facts it appears that defendant furnished this scaffolding for plaintiff's use in building the walls of the new structure, and that the weight of his body alone caused it immediately to collapse. There is nothing to show but that he used it in a proper and ordinary way; nothing was done nor did anything take place which should cause it to collapse aside from the fact that it was not sufficiently strong to Parker v. Fairbanks-Morse Mfg. Co. 130 Wis. 525. support plaintiff. The physical facts surrounding the accident are clear and undisputed, and clearly tend to show that the falling of the structure must have resulted from some defect in its construction. From these facts no other inference can be drawn than that the defendant did not furnish plaintiff a reasonably safe place to work. Spaulding v. C. & N. W. R. Co. 33 Wis. 582; Cummings v. Nat. F. Co. 60 Wis. 603, 18 N. W. 742, 20 N. W. 665; Carroll v. C., B. & N. R. Co. 99 Wis. 399, 75 N. W. 176. This situation called upon the court to declare, as matter of law, that defendant was guilty of negligence as charged by the plaintiff, and it left nothing for submission to the jury as to this issue of the case. The jury having no question of fact to ascertain upon this issue, it becomes immaterial what instructions were actually submitted respecting it, since the verdict is in harmony with the fact. It is urged that the plaintiff was guilty of a want of ordinary care in using the scaffolding. The argument is made that he knew, or in the exercise of ordinary care ought to have known, that no footlock hole had been left for the support of the westerly footlock, and that this fact imposed on him the duty to examine the structure as to its sufficiency and safety before going onto it, and that, having failed to do so, he assumed the risk incident to its use as constructed. The evidence is uncontradicted that plaintiff did not in fact observe or know how the footlocks were placed or supported. The claim that, since he was working on the wall near the scaffolding, he could not avoid observing that there was no footlock hole for the support of the westerly footlock, and that he therefore, in the exercise of ordinary care, was required to inform himself how it was in fact supported, and that such inspection would have disclosed to him any defects in the construction of the structure, is not sustained. The evidence does not clearly disclose that he was informed that no footlock hole had been provided for the support of the westerly footlock, nor Parker v. Fairbanks-Morse Mfg. Co. 130 Wis. 525. does the evidence clearly support the inference that he observed how the carpenters supported it, nor does it appear that he was otherwise informed how the carpenters supported or constructed any part of it. The evidence tends to show that he assumed that it was properly constructed and reasonably safe. Under the facts and circumstances we discover no grounds in the evidence for the contention that plaintiff was guilty of contributory negligence as matter of law in the respects claimed, or that he assumed the risk of the danger incident to the collapse of the structure. The question was properly submitted to the jury for determination. An exception is urged to the use of the word "fair" in the phrase of the instruction: "The burden of proof is upon the plaintiff to satisfy you by a fair preponderance of the evidence." As held in McKeon v. C., M. & St. P. R. Co. 94 Wis. 477, 487, 69 N. W. 175, the use of the word "fair" in such connection, with a direction to the jury that they must be satisfied of the existence of the fact referred to, is not misleading and therefore not prejudicial. Curran v. A. H. Stange Co. 98 Wis. 598, 74 N. W. 377. It is contended that, in view of plaintiff's injuries, his age, and his previous earning capacity, the amount of damages awarded is excessive, and that it shows that the jury were improperly influenced by passion and prejudice in determining this question. The extent of his injuries has been set out in the foregoing statement of facts. That they were accompanied by severe pain and suffering is without question. It is apparent to a reasonable certainty that his injuries will cause him pain and suffering in the future, that he will require extra personal care and attention on account of them, and that he is practically disabled from pursuing his occupation. These elements of injury, the actual loss of his leg, the injured condition of the other leg and arm, and the resultant nervous condition persuade us that it cannot be said that the damages allowed are so large as to warrant the court in hold Chant v. Clinton Telephone Co. 130 Wis. 533. ing that the jury improperly allowed them. The verdict must stand. We have examined the exceptions taken to the remarks of counsel, and find that the court instructed the jury properly to the effect that the remarks so excepted to must be disregarded by them in their determination of the questions submitted. Under the circumstances we are of opinion that no prejudicial effect could have resulted from them. No prejudicial error is discoverable in the record. CHANT, Respondent, vs. CLINTON TELEPHONE COMPANY, Appellant. January 10-January 29, 1907. Telephones: Construction of lines: Use of highways: Negligence: Contributory negligence: Statutes: Construction. 1. Ch. 505, Laws of 1905 (sec. 1778, Stats. 1898, as amended), authorizes the construction and maintenance, upon certain terms and conditions, of telephone lines upon public highways, but provides that no such telephone line or any appurtenance thereto "shall at any time obstruct or incommode the public use of any road, highway, bridge, stream or body of water;" and sec. 1329a provides that all wires strung on poles shall be not less than twenty-four feet above the ground at all crossings, and not less than fourteen feet above the ground at all other places. Plaintiff was moving his threshing machine drawn by a traction engine along a highway, the grain elevator thereof extending fourteen and one-half feet above the surface of the traveled track, when it came in contact with, and was injured by, a guy wire maintained by defendant telephone company which was originally fifteen feet and six inches at one end and sixteen feet at the other above the surface of the trav eled track, but which had sagged so that it was only about thirteen feet above such track. There was evidence that plaintiff did not know that the guy wire would strike the elevator |