Pautz v. Plankinton Packing Co.

118 Wis. 47 | Wis. | 1903

Cassoday, C. J.

The result of three of the findings of the jury mentioned in the foregoing statement is that the iron wheel was defective, that the defendant knew or ought to have known of the defect, and that such defect was the proximate cause of the plaintiff’s injury. The result of three of the other findings of the jury is that the wooden wheel was defective, that the defendant knew or ought to have known of the defect, and that such defect was the proximate cause of the plaintiff’s injury. The defendant moved to set aside the verdict and grant a new trial on the ground, among others, that such findings were inconsistent and contrary to the evidence. The trial court apparently held that the verdict should stand, because it found two proximate causes of the injury. Counsel for the plaintiff contends that, “where two causes proximately contribute to produce a result, they are concurrent, and the person responsible for either cause is liable in damages.” Among the adjudications cited in support of the proposition are Houfe v. Fulton, 29 Wis. 296; Walrod v. Webster Co. 110 Iowa, 349, 81 N. W. 598; Thompson v. L. & N. R. Co. 91 Ala. 496, 8 South. 406; Consolidated I. M. Co. v. Keifer, 134 Ill. 481, 25 N. E. 199; Herr v. Lebanon, 149 Pa. St. 222, 24 Atl. 201. In this last case it was held:

“If two distinct causes are operating at the same time to produce a given result, which might be produced by either, they are concurrent causes. But if two distinct causes are successive and unrelated in their operation, one of them must be the proximate, and the other the remote, cause. In such case the law regards the proximate as the efficient and responsible cause, and disregards the remote cause.”

Thus it has been held:

“When two causes co-operate to produce the damage resulting from a legal injury, the proximate cause is the originating and efficient cause, which sets the other cause in motion.” Lapleine v. M. L. & T. R. & S. Co. 40 La. Ann. 661, 4 South. 875.

This court has repeatedly held:

“Neither time nor distance is an essential element of proximate cause, but it may be defined as the efficient cause — that which acts first, and, either immediately or through other causes set in motion by it, produces the result.” Deisenrieter v. Kraus-M. M. Co. 97 Wis. 279, 72 N. W. 735; Wills v. Ashland L. P. & St. R. Co. 108 Wis. 255, 261, 84 N. W. 998. See, also, McFarlane v. Sullivan, 99 Wis. 361, 74 N. W. 559, 75 N. W. 71; Langhoff v. M. & P. du C. R. Co. 19 Wis. 489; Id., 23 Wis. 43.

In the case at bar it is undisputed, that the hoisting machine in question was operated by means of power being-applied to the wooden wheel, which was kept in constant revolution. The iron wheel was made to revolve by means of the wooden wheel being pressed against it, as indicated in the foregoing statement. It is alleged in the complaint, and there is evidence tending to prove, that at the time of the injury, and for a long time prior thereto, the wooden wheel was “defective, in that a large piece thereof was broken therefrom, and that the outer surface of the circumference was uneven and worn so that in its operation, and especially when in contact with said iron wheel aforesaid, producing the friction necessary for the operation of said apparatus, it operated in an uneven and jarring manner, and that such defects in said wooden and iron wheels, when such wheel or wheels were in operation, caused an unusual, unnecessary, and excessive strain upon said iron wheel,” and “that by reason of the fact that the said wooden wheel was broken and defective as above stated and by reason of the worn-out condition of said wheels, and the unusual and unnecessary and excessive strain upon such wheels, . . . said iron wheel was caused to be broken as aforesaid, with the results aforesaid.” If such were the facts then there would seem to be no escape from the conclusion that the defect in the wooden wheel was the proximate cause of the plaintiffs injury. If such were the facts, then it was the defect in the wooden wheel which acted first, and set in motion the iron wheel, and first caused the crack and then the break in that wheel.' The jury found that the defect-in the wooden wheel was the proximate cause of the plaintiffs injury. That finding is inconsistent with the finding that the defect in the iron wheel was the proximate cause of the injury. Besides, the plaintiff testified to the effect that he “noticed the thumping that [the witness] Web-ber talked about” while he “was working at the hoister;” that he “knew it was the friction — it was worn out;” that he “did not know there was a piece out of the wooden wheel;” that he “had no business to try to find out what was the matter with it;” that he did not tell Harrison, the mechanical engineer, that “it was thumping and not working right;” that he did tell Schubert (who was engaged in oiling the hoisting apparatus) “about it about a month before the accident;” that he asked him why he did not “fix that hoist;” that the men had trouble and could not get the bullock up ; that “it took two men at the lever to pull the bullock up;” that “Schubert said they would like to fix it” for him, but that “they did not have tbe wood to do ittbat “tbe thumping went on after that for a month.” If the defect in the wooden wheel was the proximate cause of the injury, then, with such knowledge on the part of the plaintiff of such proximate cause, it is difficult to perceive on what theory the jury could have found that the plaintiff was not guilty of any want of ordinary care which proximately caused or contributed to his injury. The plaintiff had worked for the defendant in the business for five years prior to the injury. He must be regarded as a man of ordinary intelligence and unterstanding. If the defect in the wooden wheel was the proximate cause of his injury, and he knew of such defect for a month prior thereto, then he necessarily assumed the risk, and was guilty of contributory negligence. We must hold that there was a mistrial in this case.

By the Court. — The judgment of the superior court of Milwaukee county is reversed, and the cause is remanded for a new trial.