Dibbert v. Metro. Inv. Co.

Citation147 N.W. 3,158 Wis. 69
Decision Date01 May 1914
Docket NumberNo. 72.,72.
PartiesDIBBERT v. METROPOLITAN INV. CO.
CourtUnited States State Supreme Court of Wisconsin

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Milwaukee County; O. T. Williams, Judge.

Action by William Dibbert against the Metropolitan Investment Company. Judgment for plaintiff, and defendant appeals. Affirmed.

On February 28, 1912, plaintiff, while riding as a passenger in an elevator in the office building of the defendant in the city of Milwaukee, was injured by the dropping of the elevator from the fourth floor to the basement. This action was brought to recover damages for injuries sustained. It was a cable-hoisted hydraulic passenger elevator, running on guides. The elevator cage was attached to the cables by means of a drawbolt or kingbolt. The upper end of the drawbolt contained five eyes or holes. Through these holes three hoisting cables were fastened on one side, and two counterweight cables on the other side. The lower end of the bolt passed through a saddle strap, and a nut was screwed onto the thread at the lower end of the bolt and under the saddle strap. The nut was held in place by a cotter-pin, which ran through the bolt below the nut, the saddle strap resting on the nut. This strap went around the beam on the top of the elevator cage and in this manner the cage was suspended. The drawbolt broke off flush with the upper side of the nut, through the threaded portion of the bolt, and this is what caused the elevator to drop.

The complaint charged the defendant with negligence for failure to maintain a reasonably safe and suitable elevator for the carriage of passengers; alleged that, for a long time prior to the accident, the elevator was in an unsafe and dangerous condition and defective; that it was not equipped with a proper safety device, as required by the city ordinance; that the drawbolt in question was placed in the elevator at the time the elevator was installed, nearly 20 years previous to the accident, and that long usage and the vibration from the elevator when in operationhad caused the bolt to become worn and defective and the steel to become crystallized; further, that the bolt was defective at the time it was put in place, having a flaw known as a blowhole or sandhole at the place where it broke. The answer of the defendant denied all the material allegations of the complaint. The case was regularly called for trial in branch No. 3 of the circuit court for Milwaukee county, and, by order of the court, it was sent for trial to branch No. 2 of said court, where, over defendant's objection, it was tried. The jury returned the following special verdict:

“Question 1. Was the defendant guilty of negligence in failing to keep the south elevator provided, up to the time plaintiff was injured, with a drawbolt which was reasonably safe and sufficient for the carriage of passengers? Answer: Yes.

Question 2. If you answer the first question ‘Yes,’ then answer this question: Was such negligence the proximate cause of plaintiff's injury? Answer: Yes.

Question 3. At the time plaintiff was injured was the safety device on the south elevator in a reasonably safe condition for the purpose for which it was intended? Answer: No.

Question 4. If you answer the third question ‘No,’ then answer this question: Was the defendant guilty of negligence in failing to keep such safety device in a reasonably safe condition for the purpose for which it was intended? Answer: No.

Question 5. If you answer the fourth question ‘Yes,’ then was such negligence the proximate cause of plaintiff's injury? Answer:

Question 6. At the time plaintiff was injured was the guide post on the north side of the south elevator reasonably safe and sufficient for the purposes for which it was intended? Answer: No.

Question 7. If you answer the sixth question ‘No,’ then answer this question: Was the defendant guilty of negligence in failing to have the guidepost, at the time of the accident, in a reasonably safe and sufficient condition for the purposes for which it was intended? Answer: No.

Question 8. If you answer the seventh question ‘Yes,’ then was such negligence the proximate cause of plaintiff's injury? Answer:

Question 9. If the court should be of the opinion that the plaintiff is entitled to recover, at what sum do you assess the plaintiff's damages? Answer: Three thousand dollars.”

From a judgment entered in accordance with such verdict, defendant appeals.

Doe & Ballhorn, of Milwaukee, for appellant.

Waldemar C. Wehe and Christian Doerfler, both of Milwaukee, for respondent.

BARNES, J. (after stating the facts as above).

The appellant seeks to reverse the judgment because there was no evidence to support a finding that it was negligent, and because there was a mistrial on account of other errors committed.

In deciding the motions made after verdict, the trial judge said: “Without contradiction, it appears that the defendant and its predecessor acted in the utmost good faith, and exercised extraordinary prudence in selecting the elevator which was installed, in arranging for frequent inspections thereof, in relying upon the recommendations and advice of the inspectors, and in promptly complying with their recommendations.” We concur in this statement. We also think it was a matter of conjecture, under the entire evidence, whether the defect in the bolt was such that it could have been discovered by the so-called oil, whiting, or hammer tests when the elevator was installed. We shall assume that none of these tests would have discovered the flaw in the metal. This bolt was one of the vital parts of the elevator, just as vital as the cables or the beam which supported it. If any one of these things gave way, the elevator would fall, and injury would be likely to follow, unless, perchance, the safety device stopped the descent before the momentum became excessive.

[1] The owner of an elevator in an office building is, to all intents and purposes, a common carrier, and his liability to those rightfully using the elevator is that of common carrier to passengers, and of such a common carrier as a railroad or steamship line. Ferguson v. Truax, 132 Wis. 478, 490, 110 N. W. 395, 111 N. W. 657, 112 N. W. 513, 14 L. R. A. (N. S.) 350, 13 Ann. Cas. 1092; Id., 136 Wis. 637, 643, 118 N. W. 251;Wanzer v. Chippewa Valley E. R. Co., 108 Wis. 319, 84 N. W. 423;Oberndorfer v. Pabst, 100 Wis. 505, 513, 76 N. W. 338;Treadwell v. Whittier, 80 Cal. 574, 591, 592, 600, 22 Pac. 266, 5 L. R. A. 498, 13 Am. St. Rep. 175;Fox v. Philadelphia, 208 Pa. 127, 134, 57 Atl. 356, 65 L. R. A. 214.

[2] The duty imposed on common carriers to provide for the safety of passengers is to exercise the highest degree of care reasonably to be expected from human vigilance and foresight, in view of the character of the conveyance adopted, and consistent with the practical operation of the business. This rule has been applied to both railroad companies and elevator owners. Oberndorfer v. Pabst, supra; Wanzer v. Ry. Co., supra; Ferguson v. Truax, supra; Id., 136 Wis. 637, 118 N. W. 251;Bremer v. Pleiss, 121 Wis. 61, 98 N. W. 945;Ingalls v. Bills, 9 Metc. (Mass.) 1, 43 Am. Dec. 346. Some courts state the rule to be that the slightest neglect against which human prudence and foresight may guard and by which hurt is occasioned makes the carrier liable. Meier v. Ry. Co., 64 Pa. 225, 3 Am. Rep. 581;Fox v. Philadelphia, 208 Pa. 127, 134, 57 Atl. 356, 65 L. R. A. 214;Pennsylvania Co. v. Roy, 102 U. S. 451, 456, 26 L. Ed. 141;Morgan v. C. & O. Ry. Co., 127 Ky. 433, 105 S. W. 961, 15 L. R. A. (N. S.) 790, 792, 16 Ann. Cas. 608;Taylor v. Grand Trunk Ry. Co., 48 N. H. 304, 313, 2 Am. Rep. 229.

[3] The carrier must use every precaution for the safety of its passengers that human skill and foresight could suggest, and, if there are certain known and satisfactory tests by which latent defects may be discerned in those appliances upon the soundness and strength of which the safety of the passenger depends, it is the duty of the manufacturer to make such tests. Hegeman v. Western R. R. Corporation, 16 Barb. (N. Y.) 353;Id., 13 N. Y. 26, 64 Am. Dec. 517;Caldwell v. New Jersey Steamboat Co., 47 N. Y. 282, 287;Miller v. O. S. S. Co., 118 N. Y. 199, 207, 208, 209, 23 N. E. 462;Palmer v. D. & H. C. Co., 120 N. Y. 170, 174, 175, 24 N. E. 302, 17 Am. St. Rep. 629;Carlson v. P. B. Co., 132 N. Y. 273, 277, 30 N. E. 750;Treadwell v. Whittier, 80 Cal. 574, 594, 22 Pac. 266, 5 L. R. A. 598, 13 Am. St. Rep. 175;T. & P. R. R. Co. v. Hamilton, 66 Tex. 92, 94, 17 S. W. 406;Ill. Cent. Ry. Co. v. Phillips, 49 Ill. 234, 237; Morgan v. C. & O. Ry. Co., supra; Sharp v. Gray, 9 Bing. 457; Burns v. Cork & B. Ry. Co., 13 Irish Com. Law Rep. (N. S.) 543. Mr. Hutchinson, after reviewing the authorities English and American on this point, states the rule as follows: “The established law in both countries may, therefore, be now stated to be that, while a carrier of passengers is bound to use the utmost care and skill in everything that concerns the safety of the passenger, he will not be responsible for injuries arising from latent defects in his vehicles or machinery, which no human care or skill could have either detected or prevented; or in other words, that, while it is his duty to apply every known and practicable test for the discovery of defects and imperfections in the vehicles and machinery which he employs for the transportation of passengers, he does not warrant that they are free from such defects and imperfections, and, if it appear that such defects actually existed, but were undiscoverable by such tests, he will not be held liable to the passenger for an injury which may result from them.” Hutchinson on Carriers (3d Ed.) vol. 2, § 905, p. 1013.

[4] The plaintiff proved that he was injured by a fall of the elevator due to a defective bolt. There is no claim that he was guilty of any want of ordinary care. This proof raised a presumption of negligence on the part of the defendant, and cast...

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