Pfeifer v. Standard Gateway Theater

Decision Date07 October 1952
Citation55 N.W.2d 29,262 Wis. 229
PartiesPFEIFER et al. v. STANDARD GATEWAY THEATER, Inc.
CourtWisconsin Supreme Court

Action to recover for personal injuries sustained by a minor child, brought by his father as guardian ad litem, and also for the father's disbursements for medical, hospital, and traveling expenses.

On November 21, 1948, the plaintiff child, while a patron in the defendant's theater, was struck in the eye by a spitball projected by an unknown person, which severely and permanently injured the eye.

The cause was submitted to a jury by the trial court on a special verdict, the first two questions and jury's answers thereto being as follows:

'Question 1:

'Under all the facts and circumstances shown by the evidence was the defendant negligent:

'(a) With respect to patrolling the theater?

'Answer: Yes.

'(b) With respect to using reasonable care to control the conduct of such patrons?

'Answer: Yes.

'If you answer either subdivision (a) or (b) of Question 1 'Yes' then answer the corresponding subdivision of this question:

'Question 2:

'Was such negligence an efficient cause of the injury of Robert Pfeifer:

'(a) With respect to patrolling the theater?

'Answer: No.

'(b) With respect to using reasonable care to control the conduct of such patrons?

'Answer: No.'

After the verdict had been returned, the plaintiffs moved to change the answers to the two subdivisions of question 2 from 'No' to 'Yes', and in the alternative for judgment notwithstanding the verdict and for a new trial. The trial court denied these motions and granted defendant's motion for judgment dismissing the action with costs, which judgment was entered November 20, 1951. From this judgment plaintiffs appealed.

Kenney, Korf & Pfeil, Elkhorn, for appellants.

Cavanagh, Mittelstaed, Sheldon & Heide, Kenosha, for respondent.

CURRIE, Justice.

Counsel for plaintiffs on this appeal contend: (1) That the negligence of the defendant, as found by the jury, constituted a proximate cause of the plaintiff minor's injury as a matter of law; and (2) that the trial court committed error in the instructions given to the jury on the question of proximate cause.

This case was before this court on a previous appeal taken by plaintiff from a judgment entered upon an order directing a verdict dismissing the action. Pfeifer v. Standard Gateway Theater, Inc., 1951, 259 Wis. 333, 338, 48 N.W.2d 505, 508. In our decision in that case we declared:

'There was sufficient testimony to permit the jury to infer that the operating cause of Robert's injury was the conduct of the other boys; that in all reasonable probability the injuries were the proximate result of defendant's negligence.'

We thus held in our former decision that the question of proximate cause was one for the jury and that there was sufficient testimony to have permitted the jury to have decided such question in favor of the plaintiffs. We did not hold that such question of proximate cause must be decided as a matter of law in plaintiffs' behalf in the event the negligence question was decided favorably to the plaintiffs. There is nothing in the record on the second trial to cause us to change our former opinion that the question of proximate cause presented a question of fact for the jury. The jury had a right to draw the inference, among other possible inferences, that no matter how frequently or carefully the defendant had patrolled its theater, the spitball might, nevertheless, have been projected by the unknown person guilty of such act.

Sec. 434, Comment c, of the Restatement of the Law of Torts states:

'If the evidence is conflicting or, although not contradictory, is open to two or more reasonable inferences as to what actually took place, the case must be left to the jury.'

On the question of proximate cause, the trial court instructed the jury as follows:

'Upon reading the verdict you will note that question 2 relates to causation, and this is what is commonly known as a proximate cause question. By 'proximate cause' of an injury or damage is meant the efficient cause,--that which acts first and produces the injury as a natural and probable result, under such circumstances that he who is responsible for such cause, as a person of ordinary intelligence and prudence, ought reasonably to forsee that a personal injury to another may probably follow from such person's conduct. It is not necessarily the immediate, near or nearest cause, but one that acts first, whether immediate to the injury or such injury be reached by setting other causes in motion, each in order being started naturally by the one that precedes it, and altogether constituting a complete chain or succession of events, so united to each other by a close causal connection as to form a natural whole, reaching from the first or producing cause to the final result.' (Emphasis supplied.)

Plaintiffs' counsel contends that the italicized portions of such quoted instruction constitute error because they interject the element of 'foreseeability' into the jury's consideration of the questions in the special verdict relating to proximate cause.

The instruction so given by the trial court is substantially verbatim the one recommended by Mr. Justice Marshall in his opinion in Deisenrieter v. Kraus-Merkel Malting Co., 1897, 97 Wis. 279, 288, 72 N.W. 735. This particular instruction on proximate cause was thereafter approved by this court in Feldschneider v. Chicago, M. & St. P. R. Co., 1904, 122 Wis. 423, 431, 99 N.W. 1034; Monaghan v. Northwestern Fuel Co., 1909, 140 Wis. 457, 122 N.W. 1066; Stumm v. Western Union Tel. Co., 1909, 140 Wis. 528, 532, 122 N.W. 1032; and Bell Lumber Co. v. Bayfield T. R. Co., 1919, 169 Wis. 357, 361, 172 N.W. 955. In Stumm v. Western Union Tel. Co., supra [140 Wis. 528, 122 N.W. 1034], it was stated that the instruction on proximate cause given by the trial court in that case 'was copied substantially verbatim from Deisenrieter v. Kraus-Merkel Malting Co., 97 Wis. 279, 72 N.W. 735, which has been approved by this court in decisions found in every volume of our reports for the past 12 years.'

While the instruction on proximate cause so recommended in Deisenrieter v. Kraus-Merkel Malting Co. case, supra, and approved in so many subsequent decisions has never been directly repudiated or overruled by any decision of this court; nevertheless, plaintiffs' counsel contends that such instruction was impliedly repudiated by the decision in Osborne v. Montgomery, 1931, 203 Wis. 223, 234 N.W. 372. With this contention we must agree.

Mr. Chief Justice Rosenberry, in writing the opinion of the court in Osborne v. Montgomery, supra, made a most careful and analytical examination of the subject of causation in negligence cases in order to determine the proper type of instruction to be given the jury on the question of proximate cause, giving special attention to the problem of the possible relationship of reasonable anticipation, or foreseeability, to proximate cause. He came to the conclusion that foreseeability was an element of negligence but had no place in determining the question of whether an act which has been found to be negligent, after applying the test of reasonable anticipation of harm to another resulting from such act, is the proximate cause of injury or damage sustained by a person other than the actor. This conclusion is stated in the opinion as follows, 203 Wis. at page 242, 234 N.W. at page 379:

'If it be kept in mind that foreseeability under our law as it now stands applies only to the question of negligence or the failure to exercise ordinary care, and not to limit the liability for the consequences of the wrongful act, much confusion should be done away with.'

The author of the annotation entitled 'Foreseeability as Condition of Liability', 155 A.L.R. 157, 160, cites 38 Am.Jur., 707, Negligence, par. 58; 1 Street, Foundations of Legal Liability, p. 116; 74 U. of Pa.L.Rev. 486, citing 49 U. of Pa.L.Rev. 79, 161; 26 Mich.L.Rev. 832, as authorities in support of the following conclusion of the author:

'There is a strong current of authority for the view that while foreseeability of harm is a proper element of negligence, it does not enter into the definition or test of proximate cause once negligence has been established.'

It was also error to charge the jury in the instant case that proximate cause is one which 'produces the injury as a natural and probable result' of defendant's negligence. The use of the term 'probable result' carries with it a connotation of foreseeability and was distinctly disapproved in the decision in Osborne v. Montgomery, supra, in the following language, 203 Wis. at page 236, 234 N.W. at page 377:

'Assuming, however, that an actor is guilty of negligence which results in damage to another, what is the extent of his liability? It is often said that he is liable for all of the natural and probable consequences of his wrongful act. This is not the law in Wisconsin; his liability is not so limited.'

In Bengston v. Estes, 1952, 260 Wis. 595, 600, 51 N.W.2d 539, 541, we approved the holding in Osborne v. Montgomery, supra, 'that it is not the law in Wisconsin that an actor is liable for the natural and probable consequences of his act, his liability not being limited to the probable consequences'.

The inclusion of the last sentence of the charge on causation given by the learned trial judge in the instant case, to-wit:

'It is not necessarily the immediate, near or nearest cause, but one that acts first, whether immediate to the injury or such injury be reached by setting other causes in motion, each in order being started naturally by the one that precedes it, and altogether constituting a complete chain or succession of events, so united to each other by a close causal connection as to form a natural whole, reaching from the first or producing cause to the final result.'

is not objectionable and was specifically...

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