| Wis. | Sep 20, 1898
It appears that the Pabst Building was thirteen stories in height, and each story at the time of the accident contained a large number of rooms, which were mainly used and occupied for offices by lawyers, insurance agents, and other business men, and were open during the daytime, as well as during a portion of the nighttime, for the entrance and exit of all persons occupying the same, as well as all other persons having business therein or occasion to enter the same. It was the duty of the defendant, as its proprietor, and so occupying and using the building, to see that the steam elevators therein provided for access to and exit from its several floors or rooms were properly and safely constructed and operated with the highest degree of skill and care commensurate with or proportionate to the possibility of injury to passengers in the use of such elevators. He was bound to employ men to operate them who would do all that hmnan foresight and vigilance could do under the circumstances to protect and care for the safety of passengers, and, in view of the character and mode of conveyance adopted, reasonably to guard passengers who had entered or were about to enter the car from or against accident and consequent injury. This is a duty of which he could not discharge himself by delegating or turning it over to employees or operatives, however experienced or skilful. His liability was continuous until his duty was performed, and the failure of the operator to use such care and skill
The court allowed evidence to be given to the jury, against the defendant’s objection, showing and tending to show that Millar, the defendant’s employee, who operated the elevator at the time of the accident in question, was inexperienced and incompetent. The purpose for which the evidence referred to was offered and received was conceded, and the plaintiff was allowed, against defendant’s objection, to show that Millar was engaged there as a carpenter, though he was told when he was engaged that he might have to run an elevator at intervals, relieving men when they went away; that in the course of his service he did general repair work around there, repair of the building in several places, and looked after the steam heat; that he ran an elevator the latter part of the time when he was there when he had nothing else to do; that when he was employed to work in the building by the month he had had no experience in running a passenger elevator; that he had been working in the building about four weeks or a month before he was put on air elevator to run it, and had been running one two or three weeks before Birnbaum was killed; that in the morning, between 9 and 10 o’clock, he had to relieve all three men on the elevator, fifteen minutes for each man, and from a quarter past 11 till 12 o’clock he relieved one man for dinner, and from 1 to 2 he had to relieve the east-car man for dinner, and between 3 and 4 o’clock, or half past 3 to 4, he had to relieve the men again for fifteen minutes each, lie testified that Ellis, the superintendent, showed him how
The evidence thus given tended to raise a collateral and immaterial issue prejudicial to the defendant, and the jury may well have understood that these collateral and immaterial matters had a vital and important bearing upon the merits of the case. It certainly was not material to the question of whether Millar was negligent at the time of the accident that he had run elevators previously, or how long, or had been hired for that purpose, or whether or not he was or had been a carpenter, or worked at repairs in or about the building. This evidence had no tendency to show whether or not the elevator was negligently or improperly operated. If on that occasion Millar discharged his duty properly, and did all that a competent and faithful operator ought to have done, the allegation of his negligence certainly fails. The evidence thus received raised collateral questions tending to divert the minds of the jury from the real and legitimate issue, namely, that of the negligence of the defendant or his servant in operating the elevator. The jury were not instructed to disregard the evidence thus improperly elicited, but, on the contrary, might fairly infer from these rulings and the charge of the court the materiality of all these questions to the merits of the cause, independent of the vital one of negligence of the defendant or his servant. These rulings apparently left the case open to discussion before the jury on points wholly irrelevant, and yet of a character liable to be extremely prejudicial to the rights and interests of the defendant.
Eor these reasons, the superior court erred in the rulings above set forth, and its judgment must be reversed, and the cause remanded for a new trial.
By the Court.— The judgment of the superior court is reversed, and the cause remanded for a new trial.