Opinion
No. 207.
Argued April 4, 1969. —
Decided May 6, 1969.
APPEAL from a judgment of the county court of Rock county: MARK R. FARNUM, Judge. Affirmed.
For the appellants there was a brief by Roy E. Berg and Berg Gage, all of Janesville, for the city of Beloit, and by Arnold J. Wightman and Hart, Wightman Thurow, all of Madison, for the Beloit School of Vocational and Adult Education, and oral argument by Louis D. Gage and Arnold J. Wightman.
For the respondent there was a brief and oral argument by Donald W. Kaatz of Madison.
This is an appeal from a judgment of the county court of Rock county following a trial to a jury. The plaintiff, Charles R. Severson, was found 25 percent negligent, and the defendants, the City of Beloit and the Beloit School of Vocational and Adult Education, were found to be 75 percent negligent. Damages were awarded by the jury in the sum of $20,000; and, in accordance with the apportionment of negligence, plaintiff's recovery was reduced to $15,000.
The cause of action arises out of an accident in a shop class conducted by the Beloit Vocational School. The plaintiff, then twenty-one years old, was a student in the evening class. As he turned the switch to activate a DuMore grinder, the grinder wheel disintegrated, causing fragments to fly through the air, and Severson was severely injured.
Severson was a high school graduate and at the time of the accident was working during the days for the Beloit Tool Corporation as a flute grinder. In the course of that employment, he worked on a single-speed grinder, which required merely the attachment of the grinding wheel.
The accident occurred in 1962. He had had two semesters of shop instruction at the Vocational School during the previous year, but the training then received concerned the operation of lathes, and he had never had any training or experience either on the job or at school in connection with multiple-speed grinders. The DuMore grinder is a small, portable piece of equipment, which is attached to a large immovable shaper for the purposes of operation. Its function is entirely different from that of the shaper, the shaper being merely a convenient place to mount the grinder. It was undisputed that the particular mounting place for the grinder required that the electric cord leading to the grinder run from behind the shaper and it was therefore necessary for the operator of the machine either to reach directly over the grinder or to walk around the shaper to activate the toggle switch. The toggle switch was attached to a cord at approximately a foot from the grinder and down and behind it. An instruction plate was attached to the face of the grinder, and this instruction plate advised of the various pulley ratios and the proper grinding wheel to use with them. When the grinder was properly mounted on the shaper, the instruction plate was upside down and could not be read. This machine is a complicated one and is difficult to set up. The shop instructor testified that although he had experience with the machine, he nevertheless would be unable to correctly set up the machine without referring to the instructions on each occasion. He also testified that, if the machine were geared to a speed too high for the particular grinding wheel, centrifugal force would cause its disintegration or explosion.
Although the plaintiff's instructor testified that the machine was dangerous unless a guard was placed over the grinder, he acknowledged that he had never told the plaintiff of this danger. Safety instructions were handed out to each member of the class. Included in these instructions were warnings to the students that machines should never be operated without a guard and that they should not be operated without first having the instructor approve the setup. There was testimony that could well have led the jury to conclude that this latter admonition was not always insisted upon by the instructor who supervised Severson's class. While the defendants produced an instruction sheet bearing Severson's signature acknowledging that he had received the instructions and read them, there was no proof that this instruction sheet was given to him in 1962. Rather, it might well have appeared to the jury from the testimony that the sheet was given to him in 1961, when he started his first year of classes at the Vocational School. The plaintiff testified that he did not see the guard for the wheel on the night of the accident and acknowledged that he did not ever put it on the wheel.
Severson's project involved the making of V-blocks. These were first prepared on a shaper and then were to be ground to the exact dimensions by the variable-speed grinder. He set up the grinder during the Thursday evening class period of October 26. He at that time told the instructor that he had set up the machine and was ready to operate it. He, however, was unable to find a drop cord to connect the machine to the power system. He and the instructor were unable to find a cord during the class period, and the machine was left mounted on the shaper at the end of class period. The plaintiff testified that he had followed the instructions and to the best of his knowledge the machine was originally set up in accordance with those written instructions. At the next class period on Tuesday, October 30, he returned to find that the grinder had been removed from its position and placed where it was generally stored. It was in its assembled form, and he, without any further inspection to determine whether the setup was proper, removed it, attached it to the shaper, and plugged it into the then available drop cord. When he leaned over to activate the button on the cord, the wheel on the shaper exploded.
It was Severson's testimony that he was not required to advise his instructor before he started the machine. Reynolds acknowledged that he had not requested Severson to tell him when the machine was ready for operation. While Harold J. Thomas, who is the coordinator of the Vocational School, testified that it was his practice to check on the setups of each student machinist, he was not the instructor at the time Severson was injured. The instructor then on duty, Barton B. Reynolds, stated that he had assisted Severson in explaining to him the maximum rpm permissible for each grinder wheel and what speed that machine would allow with the proper pulley arrangement. He, however, testified that he did not put the pulleys on the grinder. He acknowledged that he did not check the machine before it was operated although he knew that Severson had reached the stage in his work when the grinder would be used.
" Q. Did you come back to see if he had put them on properly?
" A. No, sir.
" Q. Any reason why?
" A. Yes, sir.
" Q. What?
" A. When he was ready for me he was supposed to come and see me.
" Q. And he came and asked you for a cord, did he not?
" A. Yes, sir.
" Q. And did you at that time think he would be ready for you?
" A. I did not, no, sir.
" Q. Did you tell him that he should come and ask you?
" A. No, sir."
He acknowledged that some individuals were permitted to operate machines without a specific authorization each time they used the machine. Reynolds also acknowledged that he at no time, even during the process of instructing on the placement of the pulleys, ever told Severson that he should put a guard on the machine. He also acknowledged that grinding wheels were occasionally defective and should have been tested prior to their use. He did not advise Severson how to check the wheel nor did he check it. He stated it was the prerogative of the instructor to make that determination. It was on the basis of this evidence that the jury made its award, and the appeal is from the judgment that followed.
" Q. Sir, you yourself knew that a guard should be placed on that machine, did you not?
" A. Yes, sir.
" Q. And yet you did not pass this information down to a student, did you?
" A. No, sir."
The defendants, following the verdict, moved the trial court to set aside the finding of the jury in regard to the apportionment of negligence and to find that the plaintiff's negligence equaled that of, or exceeded that of, the defendants. That motion was denied, and the judge's determination is challenged on this appeal.
This court has uniformly held that the verdict of a jury will be sustained if there is any credible evidence which under a reasonable view will sustain it. Kinsman v. Panek (1968), 40 Wis.2d 408, 162 N.W.2d 27. In Ernst v. Greenwald (1967), 35 Wis.2d 763, 151 N.W.2d 706, this court concluded that a verdict would be set aside only if at least one of the three following factors appeared: (1) If, as a matter of law, the plaintiff's negligence equaled or exceeded that of the defendant; (2) if the percentages attributed to the parties are grossly disproportionate; or (3) if there was such failure of proof that the verdict was based upon speculation. It is the second factor which the defendants stress upon this appeal. In an admirable memorandum decision following the motions after verdict, the trial judge reviewed the record and pointed out the credible evidence upon which the jury might well have based their apportionment of 75 percent negligence to the defendants. He stated that there was evidence of inadequate advance instruction given to the plaintiff in setting up and operating the multispeed grinder. He concluded from the evidence that the jury might well have determined that, although a set of safety rules had been given to the plaintiff in 1961, further instructions were not distributed in 1962. He found that there was evidence of inadequate teacher supervision and of the instructor's failure to fully enforce the school's safety regulations. He also pointed out that the testimony was unequivocal that, even when the grinder was properly set up and in the mode prescribed, it was, nevertheless, dangerous because the drop cord ran to the grinder in an awkward manner that required the operator to reach directly over the grinder wheel in order to start its operation; and he emphasized that, although the instructor knew of the hazards of operating the machine without a guard, he failed to so advise the plaintiff.
The defendants on this appeal make much of the fact that the plaintiff was employed in industry, that he was not a child, and that he should have avoided hazards by following the instructions and complying with the safety regulations. While we cannot dispute the defendants' contention that such conduct would have tended to prevent the accident and the failure to observe precautions constituted negligence on the part of the plaintiff, nevertheless, the record does not establish the contention that the plaintiff was an experienced machinist. On the contrary, his industrial record, as presented in court, made it apparent that the flute-grinding operation he performed in his employment was a simple manual operation that required no skill or special knowledge in setting up the machine. His industrial work was very unlike what he was attempting to do in the classroom. He was attending the Vocational School because he did not know how to operate such a machine and wished to learn. Viewing the evidence from the point of view most favorable to the respondent, it supports the apportionment of negligence found by the jury.
Additionally, the defendants argue that the trial judge erred in failing to find the plaintiff negligent as a matter of law prior to submitting the case to the jury. The trial judge in his memorandum points out that there was indeed evidence of an undisputed nature which would have enabled him to hold that the plaintiff was negligent as a matter of law. It was undisputed that the plaintiff did not, upon setting up the machine on the Tuesday evening of the accident, recheck the setup to make sure that it conformed with instructions. Rather, he negligently assumed that his original setup was correct and that it had not been changed in the several days' interval. However, the jury, as a matter of fact, found him negligent; and, as we have previously stated, the defendant is not prejudiced when the jury in its verdict subsequently makes the findings of negligence that the trial judge could have made prior to a submission of the case. Crowder v. Milwaukee Suburban Transport Corp. (1968), 39 Wis.2d 499, 508, 509, 159 N.W.2d 723; Zeitlow v. Western Casualty Surety Co. (1962), 17 Wis.2d 172, 176, 115 N.W.2d 758; Davis v. Skille (1961), 12 Wis.2d 482, 107 N.W.2d 458.
The defendants also argue that the court erred in failing to submit an instruction in regard to the duty of the instructor and a question in regard to his negligence as distinguished from that of either the Vocational School or the City of Beloit. The record shows that such an instruction was never requested, nor was any such objection made to the instructions that were given. The trial judge's memorandum points out that counsel for both the Vocational School and the City specifically agreed that the question of negligence to the jury be submitted "in terms of negligence on the part of the City of Beloit and the Beloit School of Vocational and Adult Education." We are satisfied that the failure to ask for the special instruction that is now asserted as proper and the failure to object to the instructions as given precludes the defendants from objecting to the instructions on this appeal. Withers v. Tucker (1965), 28 Wis.2d 82, 87, 135 N.W.2d 776; Van Wie v. Hill (1961), 15 Wis.2d 98, 105, 106, 112 N.W.2d 168; Grinley v. Eau Galle (1956), 274 Wis. 177, 179, 79 N.W.2d 797. Furthermore, it appears that the question in regard to negligence was substantially in the form submitted to the court by the defendants.
The defendant, City of Beloit, as a separate defense in this appeal contends that it should be dismissed from the action because the plaintiff failed to prove that the Vocational School is an agency or department under the control of the City of Beloit. Although the City of Beloit, following the close of the plaintiff's testimony, moved to dismiss on this very ground, we have already noted that the trial judge's memorandum decision makes it clear that the City of Beloit made no objection to having its negligence determined and the question submitted to the jury on the same basis as the negligence of the Vocational School was to be considered. It agreed that the Vocational School and the City were to be considered in a single question and to be treated as one. We, of course, do not find that consideration controlling, although it is persuasive. We conclude that sec. 41.15 (17) (a), Stats., is controlling in that it states, "Said board may sue and be sued in the name of the municipality . . . ." Moreover, sec. 41.15 (9) (a) 1 provides, "Every city or village with a population of 5,000 or more shall appoint a local board . . . ." Sec. 41.15 (14) provides that all conveyances, leases and contracts entered into by the Vocational and Adult Education Board shall be in the name of the city. We are satisfied that this statutory scheme clearly contemplates that the municipality, in this case the City Beloit, is properly a party to this lawsuit and, when viewed in the procedural context of the trial, is answerable to the judgment of the trial court.
By the Court. — Judgment affirmed.