159 Wis. 195 | Wis. | 1914
The appellant argues that a verdict should have been directed (1) because the failure to provide a railing for the steps had nothing whatever to do with the plaintiff’s injury, and (2) because the jostling or pushing of the plaintiff was the proximate cause of the injury and defendant was in no sense responsible for it. Failing in these contentions, defendant insists that it is entitled to a new trial because the court erred in charging the jury.
1. Three witnesses testified that they saw the plaintiff while his arm was wedged between the belt and the pulley and that his feet' were on the platform and his side was resting against the platform railing. It is claimed that this evidence shows that plaintiff was not on the steps when he got caught', and the presence or absence of a railing thereon was wholly immaterial. The trouble with this claim is that there is plenty of evidence tending to show that plaintiff was on the
2. The next question argued is that' the pushing of the plaintiff by a third person was the proximate cause of the injury, and hence there can be no recovery. The following cases are cited in support of the proposition advanced: McFarlane v. Sullivan, 99 Wis. 361, 74 N. W. 559, 75 N. W. 71; Lippert v. Joseph Schlitz B. Co. 141 Wis. 453, 124 N. W. 491; Barton v. Pepin Co. Agr. Soc. 83 Wis. 19, 52 N. W. 1129; Brown v. C., M. & St. P. R. Co. 54 Wis. 342, 11 N. W. 356, 911. Another case dealing with independent intervening causes is Cook v. M., St. P. & S. S. M. R. Co. 98 Wis. 624, 636, 74 N. W. 561.
The jury might well find that the presence of a suitable
If the defendant would be liable although the act of the party who pushed the plaintiff was a negligent one, then we do not see how it can escape liability if such act was not a negligent' one. Practically the same situation was before the court in Tolleman v. Sheboygan L., P. & R. Co. 148 Wis. 191, 134 N. W. 406, where the defendant was held liable. In principle the case does not differ from Jachson v. Wis. T. Co. 88 Wis. 243, 60 N. W. 430, where the defendant was likewise held liable. • It is well known that county fairs attract crowds and that it' is for this reason articles are 'placed on exhibition. The attention of the crowd is directed more towards, objects which arouse their curiosity than it ordinarily is to their own safety or the safety of others. People crowd and jostle their neighbors. It was in anticipation of something of this kind that a railing was built around the platform, and also perhaps -to prevent persons from thoughtlessly stepping off from it. In other words, it was anticipated that injury might happen to someone if a railing were not erected. There was just as much reason for placing a railing on either side of the steps and fully as much reason to anticipate that injury might result to some one if no railing were provided.
3. No exception was taken to the charge of the court', but it is urged that there was prejudicial error in it and that the court should in the interest of justice review it under see. 2405m, Stats.
Two paragraphs of the charge are criticised. One of them is obviously correct; the other is as follows:
“So you see that the questions which are for your determination are quite simple, for if the plaintiff has satisfied you by a fair preponderance of the evidence that the defendant was wanting in the exercise of such care and prudence as ordinarily careful and prudent' persons ordinarily exercise under the same or similar circumstances in the erection and maintenance of its viewing stand which caused the injury, and that in the light of attending circumstances the defendant as an ordinarily careful and prudent person ought reasonably to have foreseen that personal injury to another might probably result from such want of care, then plaintiff is entitled to recover at your hands.”
The criticism on this charge is that, by stating that the viewing stand “caused the injury ’’ the trial judge took from the jury the question of proximate cause and decided it himself.
The claim is far fetched. The court was not charging the jury on the question of proximate cause, but on what would constitute negligence on the part of the defendant. Where a
By the Court. — Judgment affirmed.