Hart v. Peters

• Decision Date: 09 September 1882
• Citation: 55 Wis. 405,13 N.W. 219
• Parties: HART v. PETERS AND ANOTHER.
• Court: Wisconsin Supreme Court

55 Wis. 405

13 N.W. 219

HART

v.PETERS AND ANOTHER.

Supreme Court of Wisconsin.

Filed September 9, 1882.

Appeal from circuit court, Milwaukee county.

This is an appeal from an order overruling the demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The complaint, in effect, alleges that at the time mentioned the defendants were copartners, residing at Manistee, Michigan, and doing business as dealers in lumber, in Milwaukee, under the firm name of Peters & Engelman; that the plaintiff was employed to work as an ordinary laborer in their lumber yard in Milwaukee by one Graham, then being one of the general superintendents of the yard, having full power to hire and discharge laborers on their behalf; that he entered upon the duties of said employment, and performed the same in a faithful and satisfactory manner until April 7, 1880, when he was injured as stated; that the plaintiff having, by the order and direction of one Henry Hart, (then one of the yard foremen or superintendents having charge and control of said yard, and by the defendants clothed with power and authority over the laborers in said yard, including the plaintiff,) assisted in completing the loading of a certain car for the defendant with lumber partly covered with snow, and thereby rendered extremely slippery and difficult to pile so as not to fall down, was ordered and directed by said Hart to count the number of pieces of a certain length so piled on said car; that by reason of the snow on said lumber, and its slippery condition, a slight jar would cause the piles, or one of them, on said car to fall down, unless properly braced or shored up, which was not done; that said Henry Hart, then well knowing the dangerous condition of the piles, and the dangerous nature of the employment into which he had so ordered the plaintiff, carelessly and negligently, and with gross and willful disregard of the bodily security of the plaintiff, and without warning to the plaintiff, though well knowing his dangerous position, ordered and caused the said car to be moved a short distance up the railroad track, thereby jarring one of the piles of lumber thereon, and causing the same to fall over and upon the plaintiff, and severely wounding and hurting the plaintiff, to his great damage, etc.Van Wyck & Weil, for respondent.

Finches, Lynde & Miller, for appellants.

CASSODAY, J.

There is no allegation in the complaint of the exercise of ordinary care, or any care, by the plaintiff at the time and place of the injury. For aught that appears he knew the car in question was going to be started at the very time it was started. Ordinarily, in actions for negligence, the plaintiff need not allege nor prove that he was not himself negligent. In such case contributory negligence is generally a matter of defense. Randall v. N. W. Ins. Co. 54 Wis. 147. Even where there is no evidence in the case except upon the part of the plaintiff, yet if there isany doubt about the plaintiff's contributory negligence, the question should be left to the jury. Dorsey v. Co. 42 Wis. 583;Gower v. Railway, 48 Wis. 182;Pitzner v. Shinnick, 39 Wis. 149;Cramer v. Portland, 36 Wis. 92;Barstow v. Berlin, 34 Wis. 357;Townley v. Railway, 53 Wis. 626; [S. C. 11 N. W. REP. 55;] Langhoff v. Railway 19 Wis. 489. It is, however, well settled that where the plaintiff's evidence clearly shows contributory negligence on his part, a nonsuit will be granted. Chamberlain v. Railway, 7 Wis. 425;Dressler v. Davis, 7 Wis. 527;M. & C. R. Co. v. Hunter, 11 Wis. 170;Achtenhagen v. Watertown, 18 Wis. 331;Delaney v. Railway, 33 Wis. 72;Hoyt v. Hudson, 41 Wis. 105;Prideaux v. Mineral Point, 43 Wis. 524;Gumz v. Railway, 52 Wis. 672; [[[S. C. 10 N. W. REP. 11;] Kelley v. Railway, 53 Wis. 74; [S. C. 11 N. W. REP. 67;] Naylor v. Railway, Id. 661; [S C. 11 N. W. REP. 24.] In Hoyt v. Hudson it was held that “if contributory negligence conclusively appears from the plaintiff's own evidence, he will be nonsuited; while if the evidence merely tends to show such negligence the question will be for the jury.” In that case Mr. Justice Lyon observed: “If the burden of proving his own due care to avoid the injury is on the plaintiff, he must prove such care, either by direct evidence or by showing res gestœ which exclude fault on his part, or he must fail in his action.” Page 108. “The meaning of the rule is that to render the defendant liable the injury must be the result of his negligence alone. Hence, to establish a cause of action, the plaintiff must show that the negligence of the defendant was the sole proximate cause of the injury; and to do this he must necessarily prove himself free from contributory fault.” Pages 109-10. That decision seems to have settled a question upon which members of this court in prior decisions had not, apparently, always agreed. But the decision of Hoyt v. Hudson, in this respect, was further explained by the late chief justice, in Prideaux v. Mineral Point, as follows: “It does not put the onus probandi in all cases upon the defendant, as the learned judge appears to have stated. The rule intended in that case is that a plaintiff, giving evidence of the negligence of the defeudant, and the resulting injury to himself, without showing any contributory negligence, is bound to go no further; he is not required to negative his own negligence. If, however, the plaintiff, in proving the injury, shows contributory negligence sufficient to defeat the action, he disproves his own case of injury by the negligence of the defendant alone. If the plaintiff's evidence leave no doubt of the fact, his contributory negligence is taken as a matter of law to warrant a nonsuit, If the plaintiff's evidence leave the fact in doubt, the evidence of contributory negligence on both sides should go to the jury.” Page 524. This explicit statement would seem to preclude any misapprehension as to the correct rule on questions of nonsuit. But here the question is presented on demurrer. The rule, however, would seem to be the same, unless the court is required by reason of the demurrer to construe the complaint most strongly against the plaintiff.

The question was presented, but not decided in Poole v. Railway, 53 Wis. 660, [S. 11 C. N. W. REP. 15.]

Whether such stringent rule should prevail or not, is unnecessary here to determine, since the complaint goes into details, and, in effect, alleges that after the plaintiff had assisted in piling the scantling, which were “partly covered with snow, * * * and in...