132 Wis. 478 | Wis. | 1907
Lead Opinion
The following opinion was filed January 29, 1907:
1. Numerous errors are assigned. Several of them turn upon the question whether the evidence is sufficient to sustain the findings of the jury. It is conceded in the brief of counsel for the defendant that the building in question consists of four stories and a basement. At the time of the accident the first floor was rented for storerooms, the second and third floors for offices, and the fourth floor for a business college. The elevator was put in the building in 1896. At the time of the accident and for several months prior to that time the defendant Herbert was janitor of the building, and during portions of the time ran the elevator and paid the elevator boy, Louis Larson, who was about seventeen years of age and was running the elevator at the time of the accident and had been for several hours during each day for three weeks immediately prior to the accident.
The elevator was operated by electric power. One end of a cable was attached to the top of the elevator car and ex
On December 2, 1903, while the elevator was being operated by Louis Larson, the plaintiff was in the elevator car. Claude Luse entered the elevator on the ground floor for the purpose of riding therein to the fourth floor, where he was attending the business college. These three persons rode in the elevator to the top floor. The elevator ascended some distance above the top floor. The top of the elevator came in contact with the sheave timbers above, and the power was not disconnected. The elevator then fell to the bottom of the shaft, and the three persons therein, including the plaintiff, sustained injuries. An examination of the elevator after the accident showed that one of the balls of the governor, the governor wheel, and certain connecting rods from the governor to the automatic brakes had been broken by the striking of the elevator against the sheave timbers, and that this prevented the automatic brakes from working, which brakes, if they had worked as they were intended, would have stopped the elevator in its downward course. It also appeared from such examination that the .cable that was attached to the top of the elevator ear disconnected from the elevator at the time that the elevator fell. The end of the cable at the top of the elevator car was fastened into a large bolt or pin. The pin extended between two beams. An iron plate was bolted to the under side of the beams to prevent the head of the bolt from drawing through between the beams. The plate broke, the bolt pulled out and became disconnected from the car, but remained fastened to the cable. The appearance indicated that the bolt and plate had been on the elevator car from the time it was first constructed.
An expert witness on the part of the plaintiff, of large ex
It appears that Mr. Truax resided in Eau Claire. Some
Besides the evidence mentioned, the defendant Truax, after identifying certain letters written to him in 1896 by the manufacturers of the elevator and put in evidence by the defendant, on cross-examination testified to the effect that after the elevator was installed he received information from his agents in Superior and other tenants that there was some trouble with the elevator; that it was out of order considerable — a great many times, — and then identified a copy of a
“The janitor of the Truax Block again reports the elevator machinery out of order, and the electrician of the water, light, and power company refuses to undertake the work of putting it in repair. The last time he had it repaired in Duluth and cost something like $60. They wanted $10, and we don’t feel like undertaking this expense without. your instructions. The electrician of the water, light and power company states the trouble is not due to lack of care on the part of the janitor, but he condemns the whole machine and claims it will have to be built over before it will work right.”
That letter was offered and received in evidence, as stated at the time, for the sole purpose of showing that subsequently to the installing of the elevator Mr. Truax was notified of its being out of repair and in bad condition — the whole machine. The defendant objected to the last sentence quoted on the ground that it related “to hearsay information of a third person.” The objection being overruled, counsel for the defendant stated that he presumed that it was admitted only as showing notice to Mr. Truax, and not as any proof of facts therein stated, to which counsel for the plaintiff assented, and the court added: “Just that certain complaints Were made.” Under the circumstances stated we find no error in so admitting the letter in evidence. There is certainly sufficient evidence in the record to prove that the elevator was defective at the time of the accident. So we are constrained to hold' that there is evidence sufficient to support the finding of the jury of want of ordinary care on the part of the defendant Truax to keep the elevator in an ordinarily safe condition for the carrying of passengers therein. In fact, counsel made no attempt to have the court change the answer to that question.
2. It is urged with much vigor by cofinsel for the defendant that the finding of the jury that the plaintiff was a passenger on the elevator when it fell is not sustained by the
“The answer to this question turns on whether or not the plaintiff was on his way to the office of Dr. Thompson to find if he was wanted for an errand when the elevator fell. If at the time of the accident he was engaged in riding up and down on the elevator as pastime he was not a passenger. The burden is upon the plaintiff to prove that he was a passenger by preponderance of the evidence and to reasonable certainty.”
The plaintiff had testified to the effect that at the time of the accident he was going to see Dr. Thompson, a practicing physician in the city of Superior, having an office on the third floor of the building in question, as he had done during the week and a half immediately preceding the accident; that a week or so prior to the accident Dr. Thompson had asked him to come around every morning and run errands for him, and that he did so and Dr. Thompson paid him for it; that one morning Dr. Thompson sent him to the Evening Telegram office, on another occasion he took a message from Dr. Thompson to a barber on Eifth and Ogden streets, on another occasion he took a note to the postoffice for Dr. Thompson, and that he did some other work for Dr. Thompson, and that the doctor paid him for such services; that on the morning in question he was going in the elevator to see Dr. Thompson in pursuance of his request to come around every morning and he would give him work to do. So there is some evidence tending to prove that the plaintiff was on his way to the office of Dr. Thompson to find if he was wanted for an errand when the elevator fell. It is true the plaintiff’s testimony is more or less inconsistent, especially when compared with his examination before the commissioner under sec. 4096, Stats. (1898), nearly a year prior to the trial. At the time of the trial the plaintiff was only sixteen years
3. The question recurs whether the portion of the charge above quoted was erroneous. In other words, Did the fact that the plaintiff was on his way to the office of Dr. Thompson to find if he was wanted for an errand constitute him a passenger on the elevator when it fell, as a matter of law? Confessedly Dr. Thompson was a tenant of the defendant, having an office on the third floor, accessible by the elevator in question. The rule seems to be well settled that:
“The proprietor of an elevator run for the use of the tenants of an office building and their visitors is a carrier of passengers for hire. The proprietor’s compensation is the rental paid him by the tenant, for which he undertakes to carry him and his visitors by elevator.” 10 Am. & Eng. Ency. of Law (2d ed.) 946.
This court has held:
“It is the duty of the proprietor of an office building to see that the passenger elevators operated by him therein are properly and safely constructed, and that they are operated with the highest degree of skill commensurate with or proportionate to the possibility of injury to passengers using them.” Oberndorfer v. Pabst, 100 Wis. 505, 76 H. W. 338.
4. There seems to be no basis for the claim that error was-committed in refusing to hold as a matter of law that the plaintiff was guilty of contributory negligence, nor in the claim that the special verdict was insufficient in form. The request to submit to the jury a question as to whether the-plaintiff was riding in the elevator “merely for his own accommodation or amusement” was expressly submitted in the charge of the court on the fourth question, as already mentioned. The other requests to submit related to evidentiary-matters.
. 5. Error is assigned because the court réfused to instruct the jury to the effect that if the plaintiff at the time of the-accident was riding up and down in the elevator, as he himself testified in his deposition taken nearly a year before the trial, then he was not a passenger, and they should answer the-fourth question in the negative. This court has held quite recently:
“A trial judge should not, in charging the jury, give-special significance to the evidence on one side of the controversy by speaking of it in detail, especially to those parts favorable to that side, while not mentioning the opposing evidence; nor should he so charge the jury as to refresh their-*492 memory as to the testimony on one side of the controversy while not doing so as to that on the other.” Coman v. Wunderlich, 122 Wis. 138, 143, 99 N. W. 612, citing, approvingly, Kavanaugh v. Wausau, 120 Wis. 611, 98 N. W. 550. See, also, Strasser v. Goldberg, 120 Wis. 621, 626, 98 N. W. 554; Schutz v. State, 125 Wis. 452, 462, 104 N. W. 90; Horr v. G. W. Howard Co. 126 Wis. 160, 105 N. W. 668; Schwantes v. State, 127 Wis. 160, 190, 106 N. W. 237.
Here the request to charge is subject to the criticism that it required the jury to accept as true testimony given by the plaintiff nearly a year before the trial which was inconsistent with what he testified to on the trial. Such an instruction would have invaded the province of the jury. Id.
6. Errors are assigned for prejudicial remarks of plaintiff’s counsel in arguing the case to the jury. The first remark complained of is that the question whether the plaintiff was a passenger in the elevator was the turning point in the case. At first the court overruled an objection to such remark, but afterwards changed its ruling and stated that in a special verdict there is no turning point. We perceive no reversible error in such rulings. Other objections to remarks of the plaintiff’s counsel were all sustained, and we find nothing in any of them prejudicial to the defendant. Lyon v. Grand Rapids, 121 Wis. 609, 625, 99 N. W. 311.
7. Error is assigned for rendering judgment against the defendant Truax alone, without rendering any judgment as to the defendant Herbert. It is well settled that:
“While the law permits all the wrongdoers to be proceeded against jointly, it also leaves the party injured at liberty to pursue any one of them severally, or any number less than the whole, and to enforce his remedy regardless of the participation of the others. While the wrong is joint it is also, in contemplation of law, several.” 1 Cooley, Torts (3d ed.) 224.
The same author declares that, when the suit is against several joint wrongdoers, the judgment must be for a single sum against such of the defendants as are found to be liable.
8. We are urged to reverse the judgment on the ground that the damages awarded by the jury are excessive. They are certainly pretty large. But the plaintiff was less than fourteen years of age at the time of the injury. He was taken from the elevator in an unconscious condition. He was found by the doctor to be suffering with a severe shock, apparently injuring the spine and chest, with some discoloration and swelling of the spine, accompanied with severe pain. He was placed in a plaster cast and remained there two months. On removing the plaster cast he immediately fainted and it was found necessary to replace it, and he thereafter remained in the plaster cast seven months longer. At the time of the trial he was still nervous and suffered pain and was unable- to sleep nights and could do but little work. His physician, who had attended him from the first, testified to the effect that assuming that the boy had told the truth as to his condition, and taking into consideration his own knowledge of the case, he would say that the boy’s condition and symptoms were the result of the accident, and that he would not improve but would grow worse. Such testimony is to some extent corroborated by other witnesses. We do not feel justified in disturbing the verdict. We find no reversible error in the record.
By the Oourt. — The judgment of the superior court of Douglas county is affirmed.
Rehearing
A motion by the appellant for a rehearing was granted, and the cause was reargued on May 25, 1907. The following opinion was filed June 20, 1907:
Upon the former Rearing the judgment in favor of the plaintiff was affirmed. A rehearing was •ordered upon the following questions:
“(1) If the plaintiff had been prohibited by the defendant from using the elevator, could the relation of passenger ■and carrier exist between them at the time of the accident ?
“(2) Was the plaintiff’s status as a passenger properly submitted to the jury by the instruction under the fourth •question of the special verdict ?”
The principal controversy in the case is involved in or •connected with the submission of that question to the jury. Whether the plaintiff was a passenger on the elevator at the time it fell is the vital question to be finally determined. It is stated by a learned text-writer that:
“As a general rule every person, not an employee, being carried with the express or implied consent of the carrier upon a public conveyance usually employed in the carriage of passengers, is presumed to be lawfully upon it as a passenger. There are two main elements in the legal definition of a passenger: First, an undertaking on the part of the person to travel in the conveyance provided by the carrier; and, second, an acceptance by the carrier of the person as a passenger. Whether either or both of these elements exist is ordinarily a question for the jury.” 2 Hutch. Carriers (3d ed.) § 997.
Counsel for the defendant, on 'the trial, objected to the form of the question on the ground that it was largely in the nature of a general verdict — that the conflict in the evidence, if any, brought out certain well-defined specific issues which should have' been submitted to the jury. But, as often held by this court, the form of a special verdict is very much in the discretion of the trial court, and we cannot say that there was any abuse of such discretion in submitting the fourth question of the special verdict. Heddles v. C. & N. W. R. Co. 74 Wis. 239, 257, 258, 42 N. W. 237; Mauch v. Hartford, 112 Wis. 40, 54-59, 87 N. W. 816; Byington v. Merrill, 112 Wis. 211, 225, 88 N. W. 26. Of course, all well-
In lieu of the fourth question submitted counsel for the defendant requested the submission of numerous questions calling for mere evidentiary facts and hence objectionable on that ground, as, for instance: Eor what purpose was the plaintiff riding in the elevator at the time of the accident? Did he on that morning ride up in the elevator more than •once ? Had he on that morning previously visited the office of Dr. Thompson? Had the plaintiff prior to the accident been notified by the defendant’s agents to keep out of the elevator ? One of the questions so requested in lieu of the fourth question of the special verdict was whether, “at the time of the falling of the elevator,” the plaintiff was “riding therein merely for his own accommodation or amusement ?” But that was in effect covered by a portion of the charge quoted in the opinion on file, as follows: “If at the time of the accident he was engaged in riding up and down on the elevator as pastime he was not a passenger.” Counsel for the defendant requested the court to charge the jury to the effect that if, prior to the time of the accident, the plaintiff had been notified by the defendant’s agent not to ride in the elevator, or to keep out of the elevator, then that the plaintiff was not a passenger at the time when the elevator fell, and hence that they should answer the fourth question in the negative. The giving of such an instruction would have been equivalent to charging the jury as a matter of law that the plaintiff was not a passenger if he had received such notice. This seems to be based upon the theory that the prohibition of the plaintiff, from using the elevator was not a breach of the defendant’s contract with Dr. Thompson, and that if it was, “the defendant had the right and power to breach the contract in that respect,” without being under any obligations to the plaintiff. As indicated in the opinion on file, “the proprietor
“With reference to tbe safety of tbeir passengers; tbe law has imposed upon tbe proprietors of passenger elevators duties precisely similar to those exacted of passenger carriers by railroad. Tbe safety and lives of those wbo avail themselves of this means of carriage must of necessity be intrusted in a great measure to tbe care of those wbo control and operate tbe cars. Tbe law, therefore, justly bolds that, while tbe owners of passenger elevators are not insurers of tbe safety of tbeir passengers, they are bound to exercise in tbeir behalf tbe highest degree of skill and foresight, or, as some courts have expressed it, tbe utmost human care and foresight consistent with tbe efficient use and operation of tbe means of conveyance employed.” 1 Hutch. Carriers (3d ed.) § 100, citing numerous cases, including two from this court as mentioned in tbe opinion on file.
See, also, Kentucky H. Co. v. Camp, 97 Ky. 424, 30 S. W. 1010; Miller v. Fitz Gerald D. G. Co. 62 Neb. 270, 86 N. W. 1078; Totten v. Phipps, 52 N. Y. 354; Cooley v. Cummings, 49 Hun, 608, 1 N. Y. Supp. 631; Krey v. Schlussner, 62 Hun, 620, 16 N. Y. Supp. 695; Mitchell v. Keene, 87 Hun, 266, 33 N. Y. Supp. 1045; Mitchell v. Marker, 62 Eed. 139, 10 C. C. A. 306, 25 L. R. A. 33; Springer v. Byram, 137 Ind. 15, 36 N. E. 361, 23 L. R. A. 244.
This last case is as favorable to tbe defendant as any found. It was there held that “evidence that a newsboy bad previously been refused permission to ride in an elevator is permissible in an action by him for injuries received on sucb elevator, claiming tbe rights of a passenger, where tbe rules of the establishment excluded newsboys from tbe elevator.” Undoubtedly tbe proprietor of an elevator, as well as any other carrier, may adopt reasonable regulations as to tbe ad
“may refuse to accept persons offering themselves as passengers who are unfit to be carried, either because such persons from bad character, from being afflicted by contagious disease, from apprehended evil designs either upon the carrier himself or his passengers, or from drunkenness or insanity, would be unfit associates for them or unsafe for the carrier, or if any person refuses to pay his fare, or to submit to the reasonable regulations of the carrier, or if his purpose in seeking a passage is to interfere with or injure the business of the proprietor^ of the conveyance, or to make an assault upon another passenger, or if there be no room for him, or even if the carrying of the person offering himself as a passenger would probably excite popular violence and expose him to great personal danger at the destination to which he-desired to be carried, the carrier may refuse to carry such person.” 2 Hutch. Carriers (3d ed.) §§ 966-970.
The question recurs whether the conduct of the plaintiff a short time prior to the injury was such as to- furnish reasonable ground for excluding him from the elevator. If he was guilty of such misconduct, and in consequence thereof was permanently prohibited from riding in the elevator thereafter, and, in violation of such injunction, was in,the elevator at the time of the accident, then he did not have the rights of a passenger, even if he was at the time on his way to Dr. Thompson’s office. To make such prohibition effectual it was unnecessary to repeat it every time the plaintiff came around the building. The questions thus presented were questions of fact determinable by a jury. On the trial in this ease they were not submitted to the jury. In fact they were taken from the jury. As indicated in the opinion filed, the court charged the jury to the effect that the question whether the plaintiff was a passenger on the elevator when it fell turned upon whether he was at the time on his way to the
By the Court. — The judgment of the superior court of Douglas county is reversed, and the cause is remanded for a new trial.