Kaples v. Orth

• Decision Date: 25 November 1884
• Parties: KAPLES v. ORTH AND ANOTHER.
• Court: Wisconsin Supreme Court

61 Wis. 531

21 N.W. 633

KAPLES

v.ORTH AND ANOTHER.

Supreme Court of Wisconsin.

Filed November 25, 1884.

Appeal from county court, Milwaukee county.

The defendants, as partners, were, at the time in question, dealers in ice, which they delivered to their customers in the city of Milwaukee. The plaintiff, at the time in question, was a dealer in fruits, etc., and had a stand on the corner of Division and East Water streets, in Milwaukee. In the basement of the building on such corner was a fish-market, with access to it by stairs leading down on the East Water street side of the building. On the day of the injury in question it was very hot, and the plaintiff, being oppressed with the heat, seated herself in the shade upon the upper step of said stairs, and leaned against the building to rest. While there, the defendants' wagon, loaded with ice, stopped near, and one of the defendants' servants, by the name of Krumner, engaged in delivering the ice, took a cake of ice, weighing about 50 or 60 pounds, on his shoulders with his tongs, and started to carry it down to the fish-market. While passing down from the upper step, the ice fell from the tongs, striking the hand of the plaintiff which rested on the surface of the step, thereby causing severe injury. On the trial, the jury returned a verdict for the plaintiff and against the defendants for $1,200. From the judgment entered thereon this appeal was brought.J. C. McKinney, for appellants.

Austin & Runkel, for respondent.

CASSODAY, J.

The mere fact that the plaintiff on a hot day left her place of business and sat down upon the stairs near by in the shade to rest, does not authorize us to say as a matter of law that she was guilty of contributory negligence, (Murray v. McShane, 52 Md. 217;) especially upon her testimony, which the jury may have found to be true, to the effect that she did not know of the presence of the servant of the defendants until just at the time of the injury. The servant testified that he had just previously passed down and up the stairs. But she testified that she did not see him pass down nor up. She had the right to presume that any person having occasion to pass up or down the stairs would exercise ordinary care in doing so. There being no contract relation between the plaintiff and the defendants it was incumbent upon her to give evidence tending to prove negligence on the part of the defendants or their servant. Whart. Law Neg. § 421. It is claimed on the part of the plaintiff that the evidence does tend to prove such negligence. On the part of the defendants it is claimed that it does not. All the witnesses agree that just as the servant started to go down the stairs the ice fell from his shoulders and struck the plaintiff's hand. All agree that the tongs were furnished by the defendants, and in good condition and repair. Some of the witnesses testify that he took the ice onto his shoulders from the wagon, and continued to keep it there until he started down the stairs, when it fell. Others say he put the ice down on the walk near where the plaintiff sat, and then caught hold of it with the tongs “and slung it over his shoulders and it dropped right down on her.”

The expert testimony was to the effect that cakes of ice of that size were generally carried upon the shoulders, and that they were not so apt to drop out of the tongs when so carried as when carried in some other way, and that if a person so carrying such piece of ice exercised proper care there was no danger of its falling, unless a piece of ice should break off at the point where the tooth or prong of the tongs penetrated it. Such being the nature of the evidence, can we say, as a matter of law, that there was no negligence? Generally that question is for the jury, especially where the standard of duty is a shifting one. It has been aptly said that “negligence, in one sense, is a quality attaching to acts dependent upon and arising out of the duties and relations of the parties concerned, and is as much a fact to be found by the jury as the alleged acts to which it attaches by virtue of such duties and relations.” It is not a conclusion to be testified to by witnesses, but an inference to be deduced from the facts and circumstances disclosed by the evidence. When such facts and circumstances are not ambiguous, and there is no room for two honest and apparently reasonable conclusions, then the judge may take the case from the jury. When such facts and circumstances, though undisputed, are ambiguous, and of such a nature that reasonable men, unaffected by bias or prejudice, may disagree as to the inference or conclusion to be drawn from them, then the case should be submitted to the jury. Townley v. Railway Co. 53 Wis. 633;S. C. 11 N. W. REP. 55;Hill v. Fond du Lac, 56 Wis. 246;S. C. 14 N. W. REP. 25;Nelson v. St. Paul, etc., R. Co. 19 N. W. REP. 53;Abbott v. Railway Co. 30 Minn. 483; S. C. 16 N. W....