Ormond v. Wis. Power & Light Co.

• Decision Date: 06 December 1927
• Citation: 216 N.W. 489,194 Wis. 305
• Parties: ORMOND v. WISCONSIN POWER & LIGHT CO.
• Court: Wisconsin Supreme Court

194 Wis. 305

216 N.W. 489

ORMOND

v.WISCONSIN POWER & LIGHT CO.

Supreme Court of Wisconsin.

Dec. 6. 1927.

Appeal from a Judgment of the County Court of Columbia County; A. F. Kellogg, Judge. Reversed.

This is an action by Gladys Ormond to recover damages for personal injuries sustained by her while a passenger in one of defendant's busses. From a judgment in favor of the plaintiff, defendant appeals.

Plaintiff was a passenger in one of defendant's busses going from Madison to Portage. She occupied a seat over the right rear wheel. As they entered the village of Poynette, and while the bus was traveling at a rate of four or five miles per hour, the tire of the wheel over which she was seated blew out with such force that it punctured the housing of the wheel, and caused her personal injuries. The negligence charged against defendant is a failure to properly inspect the tire before leaving on the trip. The bus was equipped with general cord tires. Before leaving on the trip, the bus was submitted to the Monona Tire Company, which deals in general cord tires, at Madison, for an inspection of the tires. A representative of the company inspected the tires, in the manner in which that company inspected all bus tires, namely, by carefully feeling outside thereof for the purpose of detecting holes or other defects that could be detected by the sense of sight or touch, and by injecting the proper amount of air. The tires were pronounced O. K. An inspection of the tire after the blowout indicated that there was a separation of the thread from the fabric part or carcass of the tire, at which point friction had worn the fabric until it had become too thin to resist the pressure of the air. There is evidence tending to show that it was possible to discover such a defect in the tire by the inspection made, but that such a defect was more certain of discovery if the tire were deflated, and a still more reliable inspection could be made by deflation and removal of the tire from the wheel. The evidence also showed that the inspection made was such as is made, not only by bus companies running out of Madison, but by bus companies generally throughout the United States. There was no evidence that any bus company anywhere in the country made an inspection of their tires requiring either their deflation or removal from the wheels.

The jury found a want of ordinary care on the part of the defendant in furnishing the conveyance in question; that the equipment was defective, which defective condition existed for a sufficient length of time to have enabled the defendant to discover the same by the exercise of ordinary care--all of which constituted a proximate cause of the accident. Upon this verdict judgment was rendered in favor of the plaintiff.Schubring, Ryan, Clarke & Petersen, of Madison, for appellant.

Grady, Farnsworth & Walker, of Portage, for respondent.

OWEN, J.

Although the verdict is framed in general terms, the only want of ordinary care on the part of the defendant which the evidence tends to support is its failure to make a more rigid inspection of the tires before permitting the bus to start on the trip, and we regard the sole question to be considered to be whether the jury was warranted in so finding.

[1] The duty which a common carrier owes to a passenger is subject to various statements in the books imposing different degrees of care upon the common carrier, all of which require, however, a very high degree of care. See the subject of Carriers in Century Digest, § 1087. The rule which prevails in this state was deliberately framed and stated in Ferguson v. Truax, 136 Wis. 637, 643, 118 N. W. 251, 253, as follows:

“For the safety of their passengers, common carriers are required to exercise the highest degree of care reasonably to be expected from human vigilance and foresight, in view of the mode and character of the conveyance adopted and consistent with the practical prosecution of their business.”

This rule has been strictly adhered to in Merton v. Mich. Cent. R. Co., 150 Wis. 540, 137 N. W. 767;Anderson v. Yellow Cab Co., 179 Wis. 300, 191 N. W. 748, 31 A. L. R. 1197;Carson v. Green Cab Co., 186 Wis. 566, 203 N. W. 394. In Ferguson v. Truax, 136 Wis. 637, at page 643, 118 N. W. 251, 253, commenting on the rule, the court said:

“Expressing the elements of this rule in other terms, it imposes on carriers of passengers the highest degree of care that men of reasonable vigilance and foresight ordinarily exercise in the practical conduct of such business under the same or similar circumstances.”

[2][3][4] Whether the conduct of the common carrier in a given particular accords with its legal duty in the premises is to be tested by comparing its conduct with that generally exercised by those engaged in the same business under the same or similar circumstances. It is to be tested by the same rules which are applied to ordinary care. In fact the care which the rule prevailing here imposes upon common carriers falls within the class of ordinary care, and their failure to observe that care amounts to...