158 Wis. 69 | Wis. | 1914
The following opinion was filed May 1, 1914:
The appellant seeks to reverse the judgment because there was no evidence to support a finding that it was negligent, and because there was a mistrial on account of other errors committed.
In deciding the motions made after verdict the trial judge said:
“Without contradiction, it appears that the defendant and its predecessor acted in the utmost good faith and exercised extraordinary prudence in selecting the elevator which was installed, in arranging for frequent inspections thereof, in relying upon the recommendations and advice of the inspectors, and in promptly complying with their recommendations.”
We concur in this statement. We also think it was a matter of conjecture under the entire evidence whether the defect in the bolt was such that it could have been discovered by the so.-called oil, whiting, or hammer tests when the elevator was installed. We shall assume that none of these tests would have discovered the flaw in the metal.
This bolt was one of the vital parts of the elevator, just as vital as the cables or the beam which supported it. If any
The owner of an elevator in an office building is to all intents and purposes a common carrier, and his liability to those rightfully using the elevator is that of common carrier to passengers, and of such a common carrier as a railroad or steamship line. Ferguson v. Truax, 132 Wis. 478, 490, 110 N. W. 395, 111 N. W. 657, 112 N. W. 513; S. C. 136 Wis. 637, 643, 118 N. W. 251; Wanzer v. Chippewa Valley E. R. Co. 108 Wis. 319, 84 N. W. 423; Oberndorfer v. Pabst, 100 Wis. 505, 513, 76 N. W. 338; Treadwell v. Whittier, 80 Cal. 574, 591, 592, 600, 22 Pac. 266; Fox v. Philadelphia, 208 Pa. St. 127, 134, 57 Atl. 356.
The duty imposed on common carriers to provide for the safety of passengers is to exercise the highest degree of care reasonably to he exjsected from human vigilance and foresight in view of the character of the conveyance adopted and consistent with the practical operation of the business. This rule has been applied to both railroad companies and elevator owners. Oberndorfer v. Pabst, supra; Wanzer v. Chippewa Valley E. R. Co., supra; Ferguson v. Truax, supra; S. C. 136 Wis. 637, 118 N. W. 251; Bremer v. Pleiss, 121 Wis. 61, 98 N. W. 945; Ingalls v. Bills, 9 Met. 1.
Some courts state the rule to be that the slightest neglect against which human prudence and foresight may guard and by which hurt is occasioned makes the carrier liable. Meier v. Pa. R. Co. 64 Pa. St. 225; Fox v. Philadelphia, 208 Pa. St. 127, 134, 57 Atl. 356; Pennsylvania Co. v. Roy, 102 U. S. 451, 456; Morgan v. C. & O. R. Co. 127 Ky. 433, 105 S. W. 961, 15 L. R. A. n. s. 790, 792; Taylor v. G. T. R. Co. 48 N. H. 304, 313.
The carrier must use every precaution for the safety of its passengers that human skill and foresight could suggest, and
“The established law in both countries may, therefore, be now stated to be that, while a carrier of passengers is bound to use the utmost care and skill in everything that concerns the safety of the passenger, he will not he responsible for injuries arising from latent defects in his vehicles or machinery, which no human care or skill could have either detected or prevented; or in other words, that, while it is his duty to apply every known and practicable test for the discovery of defects and imperfections in the vehicles and machinery which he employs for the transportation of passengers, he does not warrant that they are free from such defects and imperfections, and if it appear that such defects actually existed, but were undiscover able by such tests, he will not be held liable to the passenger for an injury which may result from them.” 2 Hutchinson, Carriers (3d ed.) see. 905, p. 1013.
The plaintiff proved that he was injured by a fall of the elevator due to a defective bolt. There is no claim that he was guilty of any want of ordinary care. This proof raised a presumption of negligence on the paid of the defendant,
It appears from the evidence of a number of witnesses what the tensile strength of this holt would have keen had it been sound and free from the sand flaw found therein and from other defects; so it appears that the tensile strength of the holt might have been tested. It is quite as important for the safety of this elevator 'that the tensile strength of this holt he tested as it is for the safety of a railroad train that the strength of a car or locomotive axle he tested, or that the resisting power of a locomotive boiler he tested. A break in any of these appliances is liable to result in the killing or maiming of human beings.. It appearing that there was a known method of testing this bolt for a latent defect, which had it been applied might and in all probability would have discovered such defect, it was negligence on the part of the manufacturer not to test the tensile strength of the bolt, considering the use to which it was to be put. The evidence shows, without dispute, that if this bolt had been sound and •free from defects it would have had sufficient strength to sustain a weight of from 50,000 to 60,000 pounds after it was threaded and from 70,000 to 80,000 pounds before. The weight of the car and passengers at the time the bolt broke was about 3,600 pounds. The carrying capacity of the car at and before the injury was limited by the city to about 1,000 pounds in excess of the load carried when the bolt broke. The factor of safety was very large if the bolt was
Barring for the present one consideration which will be next discussed, the burden was on the defendant under the. authorities above cited to show that an actual test of the tensile strength of the bolt had been made, in order to relieve itself from the presumption of negligence which followed from the facts shown by plaintiff’s evidence. This it did .not do.
The courts which exempt the carrier from liability in the case of appliances purchased from a reliable manufacturer, on account of latent defects not discoverable by ordinary inspection, where the manufacturer was negligent in not making known tests to discover latent defects, do so on these grounds: They say truly enough that the carrier ,is not an insurer; that the law does not contemplate that carriers will make their own appliances; that the manufacturers are not the agents of the carriers; that the carriers have the light to assume that a dealer of good repute has used such care as was incumbent on him to use in the construction of the appliance; that all that can be expected of a carrier is to purchase such an appliance as it has reason to believe is safe, giving it such an inspection as is usual and practicable, and that to adopt any other rule would make the carrier an insurer. The following cases follow the foregoing rule: Grand Rapids & I. R. Co. v. Huntley, 38 Mich. 537, 547; Frelsen v. Southern Pac. Co. 42 La. Ann. 673, 7 South. 800; Richardson v. G. E. R. Co. L. R. 1 C. P. Div. 342. There are some expressions to the same effect in Ill. Cent. R. Co. v. Phillips, 49 Ill. 234, but the question under discussion was not really involved in the case. There are also a number of other cases cited as holding the same doctrine, in the note to Morgan v. C. & O. R. Co. (127 Ky. 443, 105 S. W. 961) 15 L. R. A. n. s. 790. The
Turning to those cases which hold the carrier liable for the negligence of the manufacturer, we find that they proceed upon the following line of reasoning: The passenger has the right to insist that the carrier shall furnish appliances that will secure his safety, if they can be furnished by the exercise of the utmost care, skill, and precaution. The contract of carriage is between carrier and passenger, and the latter, having no control over or contract relations with the manufacturer, must look to the carrier to see that he is properly protected. The carrier itself may construct the appliance which it uses or it may employ some one else to do so. In either case it engages that all that well conducted skill can do will be done to make the appliance safe. A good reputation on the part of a manufacturer is not a substitute for a good vehicle. What is demanded and what is undertaken by the carrier is not merely that the manufacturer has the requisite capacity, but that it was skilfully exercised in the particular instance. In the ordinary course of things the passenger does not know whether the carrier has himself manufactured the means of carriage or contracted with some one else for its manufacture. If the latter, the passenger does not usually know who the manufacturer is, and in no case has he any share in his selection. The liability of the manufacturer must depend on the terms of the contract between him and
Considering the degree of care which a common carrier is required to use, we think the better reasoning, as well as the weight of authority, is to the effect that the carrier is liable for the negligence of the manufacturer, and we so hold. The
The elevator had been in service for more than twenty years when the bolt broke, but we do not see how this long use could affect the situation. The fact remains that there was a large flaw in the bolt which greatly weakened its strength; that in all probability a proper test of the strength of the bolt would have disclosed the flaw; that such test was not made; and that plaintiff was injured because it was not made. If long use would tend to acquit the manufacturer of negligence, then the exercise of due care would impose on the owner the duty of taking the machinery apart and examining and testing the bolt to ascertain whether or not it had become materially weakened from constant use, and this was not done.
The case was pending for trial before J udge Williams and an affidavit of prejudice was filed against him. He held that the affidavit had not been filed within the time the statute required, but declined to try the case and sent it for trial to Judge Ehitz, who presided over another branch of the circuit court for Milwaukee county. It is said that Judge Williams erred in sending the case to another judge for trial and that Judge Eeitz erred in proceeding with the trial over defendant’s objection, and further that the error was jurisdictional. There is but one circuit court for Milwaukee county, consisting of six branches presided over by different judges. The jurisdiction of these judges is co-ordinate, and litigants have
The building in which the elevator was located was originally built and owned by Mr. Cotzhausen. Later it was conveyed to the defendant corporation. Mr. Cotzhausen was called in as an adverse witness and under objection testified that he and his wife were the principal stockholders in the corporation. It is argued that this was prejudicial error. If the change in ownership could in any case affect the question of liability, it did not do so here where the change was practically nominal. Haynes v. Kenosha E. R. Co. 139 Wis. 227, 119 N. W. 568, 121 N. W. 124; Wolf Co. v. Kutch, 147 Wis. 209, 132 N. W. 981.
The other detailed errors assigned becofne immaterial under the view of the case taken by the court.
By the Court. — Judgment affirmed.
The following opinion was filed October 6, 1914:
The verdict in this case was rendered June 25, 1913. Before the expiration of one year the defendant made a motion for a new trial in the circuit court on the ground of newly discovered evidence. The mandate of this court affirms the judgment of the circuit court. The defendant conceives that such mandate would preclude the trial court from passing on the motion for a new trial and asks
It is so ordered.