193 Wis. 496 | Wis. | 1927
The following opinion was filed January 11, 1927:
Harrie Rogers, a man seventy years of age, in good health, active, but of a nervous temperament, entered the furniture store of the appellant to purchase some furniture. He made known his wants to one Wach-smuth, an employee of the appellant, who led him to the elevator shaft with the intention of going on the elevator from the first floor to the third floor of the building, where the furniture was located. Wachsmuth proceeded to the shaft slightly ahead of Rogers and to his right. The elevator was at the third floor. As he approached the elevator shaft Wachsmuth opened the door and reached in with his left hand to pull the elevator cord which would bring the elevator to the floor where he was standing, and 'at the
The trial court changed the finding of the jury that the defendant failed to exercise ordinary care in not having the elevator shaft lighted, and that such failure was a proximate cause of the accident, from the affirmative to the negative, and reduced the damages on account of pain and suffering from $8,500 to $2,000, and entered judgment accordingly.
It is contended on behalf of the appellant that the evidence failed to sustain the verdict in finding that the appellant was guilty of negligence and in failing to find that the deceased
The law presumes that a person will use ordinary care to
It seems highly improbable that a man of the age of seventy years, intelligent and active, under the circumstances here shown, would open the elevator door of his own accord and step into the shaft without knowing that the elevator was at the floor. On the other hand, if the door was opened by Wachsmuth, that would constitute an invitation to Rogers to enter, which he would naturally accept, and he was not required to stop and, make any special examination to see that the elevator was at the floor. Tousey v. Roberts, 114 N. Y. 312, 21 N. E. 399; Christensen v. James S. Hannon, Inc. 230 N. Y. 205, 209, 129 N. E. 655. The difficult question here is to determine whether or not Wachsmuth opened the door wide enough for Rogers to enter. It is an undisputed fact that the doof was wide open after the accident, and it is undisputed that no one saw Rogers touch the door or heard him move the door, and Wachsmuth is unable to account for the door being open, except by inference. We think, however, that the jury had a right to draw the proper inference from the facts. 23 Corp. Jur. 54. It is true that Wachsmuth claims that he did not open the door wide, but from the fact that the door was open wide, and from the fact that Wachsmuth does not claim to have seen or heard Rogers open it, and' from the fact that Rogers fell into the shaft almost instantly after Wachsmuth opened the door, we think the jury were'justified in drawing the inference that Wachsmuth was mistaken about the door stopping, but that it continued to roll back from the momentum that he gave it in opening it, until it was wide open for Rogers to enter. Thé door was a heavy steel door, and would naturally acquire a considerable momentum if opened with a hard pull.
The appellant relies upon Switzer v. Detroit Inv. Co. 188 Wis. 330, 206 N. W. 407, and Bremer v. Pleiss, 121 Wis. 61, 98 N. W. 945, but neither case is closely in point. In the Bremer Case the plaintiff was a guest at a hotel and was in the habit of using the elevator. The plaintiff, in that case, approached the elevator door and found it open, with no attendant present. The elevator was not at the floor, and he fell into the shaft. In that case there was no employee of the hotel present to invite him to. enter. In the instant case Rogers was an invitee, and was acting at the instance of Wachsmuth, who was going with him to the elevator to ride to the third floor. If the door was thrown open by Wachsmuth, Rogers might rightfully have assumed that he was to enter.
In the Switzer Case the plaintiff entered an office building, passed the regular attendant at the entrance, and went into the building some distance, where he found the elevator door slightly ajar. He proceeded to open the door in the absence of the operator, and stepped into the shaft. Here, again, the invitation was lacking and the plaintiff was acting on his own initiative. The instant case is more like that class of cases where the defendant is guilty of creating a snare or trap, by which the plaintiff is injured. But on the whole case we are satisfied that the evidence was sufficient to take the case to the jury, both on the question of negligence and contributory negligence.
The appellant contends that the damages are excessive,
Upon the question of pecuniary damages to the widow, the record furnishes a fairly satisfactory basis upon which to form a judgment. Mr. Rogers was seventy years of age when he met his death. His expectancy of life was 8.40 years. The widow was sixty-nine years of age, and her expectancy of life was 8.97 years. Rogers was engaged in the real estate and insurance business, and during the last five years he earned in that capacity a net average yearly income of $2,110, but in addition had earned $3,100 from an outside source, which had been closed up before his death. It is within the reasonable experience of men that, at the age of seventy, or even before, a man’s earning capacity in active work begins to slow down, and this is indicated by a statement of the earnings of Mr. Rogers. In the year 1922, after deducting earnings from the outside source, his earnings were $2,328; in the year 1923, $2,038, and in the year 1924, $1,841. In view of the reasonable expectation of diminishing returns from the services of Mr. Rogers, his personal expenses had he lived, and the present worth of his probable earnings, it is the opinion of the court that the judgment for pecuniary compensation to the widow should be reduced from $10,000 to $8,000, in the interest of justice. Pursuant to sec. 251.09, Stats., it is directed that judgment be entered accordingly.
By the Court. — The judgment of the circuit court is modified as indicated in this opinion, and as modified it is affirmed.
Upon a rehearing of this cause the decision of the court as reported ante, p. 496, 211 N. W. 782, is affirmed, except that the mandate is amended in accordance with the decision in Campbell v. Sutliff, ante, p. 370, 214 N. W. 374, to read:
The amount of damages as indicated in the opinion is considered the highest amount that an unprejudiced jury could reasonably find under the facts of the case. The judgment of the circuit court is reversed, and a new trial granted on the question of damages only, unless the defendant shall, within ten days of the filing of the remittitur with the clerk of the circuit court, elect to allow entry of judgment for the amount of damages suggested in the opinion.