Schultz v. Chicago, Milwaukee & St. Paul Railway Co.

116 Wis. 31 | Wis. | 1902

Dodge, T.

Plaintiff contends that the fall of the lumber must be ascribed to the presence of the spikes in the bottom of the car; also to the manner in which the lumber was laden upon the car, namely, the promiscuous dumping of indiscriminate lumber loosely between the two tiers lying along the sides; and invokes the rule of res ipsa loquitur, declared in this court in Cummings v. Nat. Furnace Co. 60 Wis. 603, 18 U. W. 742, 20 U. W. 665; Stacy v. Milwaukee, L. S. & W. R. Co. 85 Wis. 225, 54 N. W. 779, and Carroll v. Chicago, B. & N. R. Co. 99 Wis. 399, 75 N. W. 176. The principle of those cases is that, where the accident could not well happen unless either the apparatus be defective or be negligently managed, then the accident itself is evidence of one or the other of these causes; and, if defendant be responsible for both condition and management of the apparatus, the accident alone tends to establish defendant’s liability, and justifies a verdict. The antithesis to this rule was laid down in Musbach v. Wis. Chair Co. 108 Wis. 57, 84 N. W. 36, where the accident might have been due either to a defect in the apparatus, for which defendant would be liable, or to negligence of co-servant, for which he would not. It was there said (108 Wis. 67, 84 N. W. 39):

“With these two possible causes to account for the explosion, the burden of proof, of course, rested on the plaintiff to prove the one for which the defendant would be liable.”

In the case before us we have nothing proved but the fact that the lumber fell. It appears that there were spikes, which might or might not tilt the tier of lumber on the east side of the car so as to render it insecure. There is no proof that they did so. Indeed, so far as the evidence goes, it tends the other way, for the only witness on the subject declares that the planks composing this tier were level. Besides this possible cause, there appears, however, the fact that the tier of lumber about two- and a half feet high on the lower edge of a tipping car was subject to outward pressure from tbe lumber thrown behind and against it; that the loaders of the car had taken precautions against this outward tendency by confining the lumber by upright stakes along the car edge, and that such safeguarding stakes had just been removed in plaintiff’s presence, and by his fellow servant; also that certain lumber had already been passed over this exterior tier, with probable tendency to start an outward movement. Here are at least three possible causes for the fall of this lumber other than the mere presence of spikes in the car floor: Eirst, the obvious tendency of physical forces; second, the possibly negligent removal of the stakes, which obstructed such forces; and, third, the possibly negligent act of pushing pieces of lumber over this unsupported wall. Eor neither of these three could defendant have been liable to plaintiff. Not the first, because all the conditions were open and obvious, and as- easily discoverable by plaintiff as by any of defendant’s agents; so that, if they constituted a peril to members of the unloading crew, the plaintiff assumed the risk thereof. Not the second or third, because any negligence therein was that of fellow servants. As was pointed out in the Musbach Case, it is not enough that plaintiff show that there are several causes, one as probable as another, to warrant the court in submitting to the jury a choice between them. If there is a reasonable possibility that the accident may have been due to a cause other than the alleged negligence of the defendant, it becomes the duty of the court to take the question from the jury, unless there is some evidence other than the mere happening of the accident to establish the efficacy of such negligence. Of that we can find nothing in the present case, and must conclude that the trial court properly performed its duty in declining to submit to the conjecture of the jury which of the several possible causes was the actual one.

By the Court. — Judgment affirmed.