Grosso v. Wittemann

• Decision Date: 02 February 1954
• Citation: 266 Wis. 17,62 N.W.2d 386
• Parties: GROSSO et al. v. WITTEMANN.
• Court: Wisconsin Supreme Court

Page 386

62 N.W.2d 386

266 Wis. 17

GROSSO et al. v. WITTEMANN.

Supreme Court of Wisconsin.

Feb. 2, 1954.

In behalf of Gerald Grosso, a minor, this action was brought against the defendant for injuries Gerald sustained by reason of defendant's alleged negligence. Bernard Grosso, Gerald's father, joined as plaintiff to recover derivative damages. The jury returned a verdict in favor of the plaintiffs. The court entered judgment notwithstanding the verdict and dismissed the complaint. The plaintiffs appealed.

Gerald Grosso, aged fifteen years and nine months at the date of the accident, was a student in the public school course in industrial arts. Defendant was his instructor and also had supervision and control of a small room, referred to as the oil room, in which paint, acids, inflammable liquids and other materials were stored which were necessary to the course. A few days before the accident in question the defendant, assisted by Gerald and another pupil named Shong, cleaned the oil room and at that time defendant decided to get rid of an unmarked bottle of acid found there. He and the two boys took it to the basement to pour it on some ashes but they found the ashes had been removed so they brought the bottle back to wait until more ashes accumulated. Gerald testified he did not remember this. When they returned to the oil room defendant placed the bottle, which was then about three-fourths full of acid, near the front of a shelf in the oil room. This shelf was 54 inches above the floor and was constructed of steel, three-sixteenths of an inch thick and 14 inches wide, placed on angle irons one-fourth of an inch thick, bolted to the wall on four brackets. It was not subject to any vibration. The bottle was about the size and shape of a quart Mason jar. The testimony varies as to just where defendant placed the acid bottle and it may have been as close as four inches to the front of the shelf or as far back as 12 inches. A day or two after the return of the bottle to the shelf the same two boys volunteered to scrape some tax off the floor of the oil room. The defendant permitted them to do so and, in the absence of the defendant, in some way Grosso knocked over the bottle of acid and was burned. When the bottle was inspected after the accident there was no cork in it. Crosso testified that when he first went into the oil room to scrape the wax from the floor he saw the acid bottle standing on the shelf.

The jury returned a special verdict which answered the questions material to the appeal as follows:

Question 1. At and immediately prior to the accident the defendant was negligent: (a) as to the manner in which he placed and maintained a bottle containing acid on a shelf in the oil room.

b. He was not negligent as to warning Gerald Grosso that the bottle contained acid.

Question 2. The negligence determined by 1(a) was a cause of the accident and the resulting damages.

Question 3. The plaintiff failed to exercise ordinary care for his own safety.

Question 4. Such failure was a cause of the accident and damages.

Question 5. The causal negligence was divided 55 per cent to the defendant and 45 per cent to plaintiff Gerald Grosso.

After verdict the trial court granted defendant's motion for judgment notwithstanding the verdict and entered judgment dismissing the complaint. The trial court filed a written decision stating as a matter of law that the defendant had warned Gerald and his companion, Shong, of the danger of the acid, and, in view of defendant's other duties he had exercised every reasonable care in the manner in which he placed and maintained the bottle upon the shelf. The trial court concluded that the defendant was not negligent and that on clear and positive testimony the boys had engaged in scuffling with other boys who were holding the door to the oil room and in some unexplained way knocked over the bottle. It held that such scuffling was an intervening cause of the accident.

Quarles, Spence & Quarles, Milwaukee, Edmund W. Powell and Kurt H. Frauen, Milwaukee, of counsel, for appellants.

Gerlach & Porter, Milwaukee, for respondent.

BROADFOOT, Justice.

This action is based on common-law negligence. A teacher in the public schools is liable for injury to the pupils in his charge caused by his negligence or failure to use reasonable care. 78 C.J.S., Schools and School Districts, § 238(c), p. 1197. The many cases collected in the annotation in 32 A.L.R.2d at pages 1181-1186 sufficiently demonstrate that the teacher is not immune to such responsibility in the absence of statute. Neither is he an insurer of the safety of the pupils in his charge.

The gist of the plaintiff's complaint is contained in par. 5 thereof, which reads as follows:

'Upon information and belief that at the time the defendant allowed the plaintiff Gerald Grosso and Thomas Shong to clean the oil room he knew that certain dangerous acids were stored the said room and that he also knew at the time he allowed the two boys to enter the oil room that he had a short time prior thereto placed an unlabeled, uncorked bottle on the shelf in said room near the front of said shelf and that he believed said bottle contained an acid or other dangerous liquid; that on January 24, 1949 the plaintiff Gerald Grosso was fifteen (15) years of age, and upon information and belief, Thomas Shong was fourteen (14) years of age; that despite the tender age of these two boys the defendant allowed them to enter the oil room containing the hazards just referred to alone and unsupervised and failed to warn them of the hazards present therein; that at the aforesaid time the...