Kaszubowski v. Johnson Service Co.

151 Wis. 149 | Wis. | 1912

Vinje, J.

The evidence as to the condition of the floor of the engine room and as to whether or not the engine room was sufficiently lighted is conflicting. The plaintiff’s testimony shows that the engine room was in an oily, greasy, and filthy condition, that oil dripped from the engine almost constantly, and that the floor was not kept clean. ITis testimony also is to the effect that the engine room was dark by reason of the fact that wire screens were placed over the windows, and the windows were not kept clean. On behalf of the defendant the testimony is that, while more or less oil and grease dripped from the engine, the engine room was cleaned twice a week, and there was ample light coming through the windows for observing the floor of the engine room. It is conceded that it was necessary for plaintiff, in order to reach the fan, to walk across the engine-room floor. If the correctness of the court’s ruling depended upon the questions as to whether or not the engine-room floor was reasonably clean or the engine room was adequately lighted, then the judgment would have to be set aside, because those were, under the evidence, questions for the jury. Harris v. Cameron, 81 Wis. 239, 241, 51 N. W. 431. But in view of the evidence as to which there is no conflict we have reached the conclusion that the judgment must be affirmed.

The basement floor, not including the engine room, was known as the garage, and was used by the defendant for repairing automobiles. The evidence shows that plaintiff was familiar with the use to which this floor was put and with the operations there carried on. In the west side of the garage there was a wash rack, and at the northeast corner there was a‘ bench where a steam pipe came out from the boiler room which' was used in blowing grease and dirt out of differential and gear casings. ■ Water was also used on the wash rack for the same purpose. On the morning in question some gear casings were blown out which deposited a great deal of dirt and grease on the floor. To the knowledge of plaintiff, the character of the work carried on in this room made the floor wet, greasy, or dirty at all times. In order to reach the engine room plaintiff crossed the garage diagonally from the southwest comer to the northeast comer, passing the wash rack and the bench where the grease was deposited on the floor in cleaning the differential and gear casings, and entered the engine room by descending the flight of steps in the northeast corner of the garage. He then went around the engine and generator, which stood in the center of the room, and came to the ladder. He went up to about the sixth rung to look at the fan, when his foot slipped on the rung and his hand was involuntarily thrown into the fan and injured. After the accident he went bach through the engine room, recrossed the garage floor substantially the same way he crossed it upon entering, and was tahen to a hospital. "When he reached the hospital he found his shoes were greasy along the sole, the ball of the foot, and heel. He testified that he found a crease on the grease or sole of his shoe indicating where his shoe slipped on the rung. The ladder was selected by a fellow-servant from a number of ladders owned by the defendant,, and there is some testimony to show that the ladder itself was greasy. Assuming that the evidence would warrant the jury in finding to a reasonable certainty that there was grease oji the plaintiff’s shoe at the time he mounted the ladder, and ás-, suming further that a finding to the effect that the encase on his shoe caused plaintiff to slip would be warranted, still there is no evidence in the case from which the jury could find that the grease on plaintiff’s shoe became attached thereto on the engine-room floor. It is a mere guess as to whether it became attached there or on the garage floor. The evidence is conflicting as to whether or not there was grease on the.engine-room floor, but there is no dispute about the fact that the garage floor was greasy and oily at and over the place where plaintiff walked just previous to his injury, and the trial court correctly held that plaintiff was chargeable with knowledge of the condition of the garage floor and assumed the risk from walking thereon and any risk incident to grease becoming attached to his shoes by reason of walking over such floor. Moreover, if it be conceded that the grease became attached to his shoe on the engine-room floor, it does not appear from the evidence, and it would be a mere guess to infer, that it came from grease, oil, or filth deposited there a sufficient length of time to constitute negligence on the part of the defendant in not having it removed. It is a matter of common knowledge that oil is constantly used in an engine room, and that more- or less oil does or may drip from an engine in operation. For aught that appears, if the oil or grease became attached to the shoe in the engine room it may have been oil or grease deposited there but a few moments. So it is evident that it would be impossible to determine with reasonable certainty whether or not the grease became attached to the shoe on the garage floor, or, if in the engine room, that it was grease negligently allowed to remain there.

In treating the case we have assumed that the grease was on plaintiffs shoe at the time he slipped, that there was no grease on the ladder, and that the grease caused him to slip. These assumptions are perhaps more favorable to plaintiff than the evidence would warrant, especially as to the grease on the ladder. But, even indulging in these presumptions in favor of the plaintiff, the fact remains that it would be impossible to trace the grease on plaintiff’s shoe with reasonable certainty to an actionable cause for which defendant was responsible. This burden is placed upon every plaintiff in a personal injury action. It is incumbent upon him to show to a reasonable certainty that the defendant was negligent and that such negligence was the proximate cause of his injury. It is not sufEcient to show two or more causes, some of which are actionable and some of which are not, and from such evidence permit the jury to guess or speculate as to which one of the two occasioned the injury. Hyer v. Janesville, 101 Wis. 371, 77 N. W. 729; Hamann v. Milwaukee B. Co. 127 Wis. 550, 106 N. W. 1081; Schell v. C. & N. W. R. Co. 134 Wis. 142, 113 N. W. 657; Hart v. Neillsville, 141 Wis. 3, 123 N. W. 125; Stock v. Kern, 142 Wis. 219, 125 N. W. 447; Houg v. Girard L. Co. 144 Wis. 337, 129 N. W. 633; Samulski v. Menasha P. Co. 147 Wis. 285, 133 N. W. 142. The trial court, therefore, properly directed a verdict for the defendant because the evidence failed to disclose that defendant’s negligence, if any there was, constituted the proximate cause of plaintiff’s injury.

By the Court. — Judgment affirmed.