Thompson v. Johnston Bros. Co.

• Decision Date: 29 December 1893
• Citation: 57 N.W. 298,86 Wis. 576
• Parties: THOMPSON v. JOHNSTON BROS. CO.
• Court: Wisconsin Supreme Court

86 Wis. 576

57 N.W. 298

THOMPSON

v.JOHNSTON BROS. CO.

Supreme Court of Wisconsin.

Dec. 29, 1893.

Appeal from circuit court, Milwaukee county; D. H. Johnson, Judge.

Action by Caroline Thompson, administratrix of the estate of Gustav Thompson, deceased, against the Johnston Bros. Company, for negligently causing the death of said Gustav. Judgment for plaintiff. Defendant appeals. Affirmed.

The other facts fully appear in the following statement by CASSODAY, J.:

It appears from the record that the defendant was, at the times hereinafter mentioned, and now is, a corporation, organized under the laws of this state, engaged in carrying on the steam bakery and candy manufacturing business in Milwaukee; that, in the building in which the defendant transacted such business, there was a steam freight elevator operated by the defendant; that March 21, 1890, the said intestate, while in the employ of the defendant in running and operating said elevator, was killed; that March 1, 1892, the plaintiff was appointed administratrix of his estate; that thereupon this action was commenced, on the alleged ground that the said Gustav was killed by the wrongful act, neglect, and default of the defendant. The defendant thereupon answered by way of admissions and denials, and alleged contributory negligence or carelessness on the part of said deceased. At the close of the trial the jury returned a special verdict, to the effect (1) that the freight elevator of the defendant, upon which said intestate lost his life, was not a reasonably safe appliance, as respected the person employed to operate it; (2) that the unsafe condition of said elevator was the approximate cause of the intestate's death; (3) that the intestate was not of sufficient age and experience to comprehend the danger of operating said elevator; (4) that the intestate was not guilty of any negligence or want of ordinary care in the operating of said elevator which proximately caused, or contributed to cause, his death; (5) that the boy did not try to shut the elevator door with his foot, nor did he, while so doing, lose his balance, and fall partly from the east side of the elevator platform, and so get caught between the platform and the floor before he could extricate himself; (6) that said intestate did accidentally seize the cable by which the elevator was moved up and down, before he fell upon the platform, instead of one of the “check lines,” so called, and his hand was thereby drawn into the drum around which said cable was coiled; (7) that the defendant was guilty of negligence in permitting said elevator, or causing the same, to be used in its business without alteration in the respect in which the same was dangerous to the person operating it; (8) that, if the court should be of the opinion that the plaintiff was entitled to judgment, then they assessed her damages, in reference to the pecuniary injury to her from her son's death, at $1,700. Thereupon, and on motion of the plaintiff, judgment was rendered and entered upon said verdict in favor of the plaintiff, from which, and the whole thereof, the defendant brings this appeal.Winkler, Flanders, Smith, Bottum & Vilas, for appellant.

Toohey, Doerfler & Gilmore, for respondent.

CASSODAY, J., (after stating the facts).

In his charge to the jury, the learned trial judge gives a description of the elevator in the following language: “As to the nature of this freight elevator, and as to its construction and the method of its management, there is no diversity of evidence. There is some little uncertainty as to some points, probably because the elevator has been burned up, and nobody remembers with accuracy in the matter of distances,--inches, feet, and the like; but the general features of the machine are before us upon uncontradicted evidence. It was a freight elevator, run by steam. It was used for carrying goods from the basement to the fourth story of the factory, not counting the basement as one story. It consisted of a platform six feet by five feet ten inches. It passed up and down through what I may call ‘hatchways,’--that is, openings in the several floors through which it passed. It was lifted and lowered by means of a cable, which ran over a ‘sheave,’ as it is called, above the top of the elevator, and which was taken in and paid out by a drum situated between the first and second floors, not counting the basement, and attached to the ceiling of the first floor, suspended below that ceiling a short distance, and a short distance away from where the elevator passed up and down; the exact distance we are not advised of. Various witnesses have made various estimates of the distance, and you must judge as well as you can of the distance of that drum from the nearest edge of the platform as it passed by it, going up or down. That elevator was managed by means of two check ropes or check lines, which were situated in the northeast corner of the elevator,--on the north side, and near the east side. Near those two check ropes passed up the cable by which the elevator was lifted and lowered. It did not pass through the floor of the elevator, but passed just outside of the floor. According to some of the witnesses, a notch or partial opening was made in the side of the hatchway to make room for this cable as it played up and down. Precisely how near it was to the check lines, the evidence is not entirely agreed. Some of the witnesses placed the lines within about six inches of each other, and said that they were in a line one with the other. Another witness, however, said--and it must, in the nature of things, be true--that they were not exactly in line; that the check lines were a little south of the cable. This, I say, must have been true as to a portion of the space traversed by the elevator, because the cable, after passing through the second floor above the basement, coming down, was not continued down into the basement, but was carried off to the spool or drum, and wound around it. On the east side of the elevator there was a door between the first and second floors, which was situated, according to the evidence, from one foot to sixteen inches beyond the space traversed by the platform, and east of it, that space being floored over at the bottom, and ceiled over at the top. How it was on the other side, we are not advised, and it is immaterial.” It appears that the drum mentioned was iron, and about 22 inches in diameter; that it was suspended by iron braces on the north side of the elevator, and ran east and west, parallel with it; that it was from 5 to 18 inches out from the edge of the floor of the elevator as it passed by in going up and down; that, as the elevator went up, the drum took in the cable on the side towards the elevator by turning downward; that the cable was a steel cord, an inch or more in diameter, and, as it was so taken up by the drum, each coil would run into a spiral groove or crevice on the side of the drum towards the elevator, and beneath it; that, between such spiral grooves or crevices, there was a raised space of about a half inch; that the cable and drum were both open and exposed to the view and reach of the operator between the floors mentioned in the opinion; that, as the elevator moved downward, the drum turned the other way,--that is, upward,--and let out the cable; that the two check lines by which the elevator was manipulated were each five-eighths of an inch in diameter, and on the side of the elevator towards the drum; that they were from 6 to 9 inches from each other, and from 2 to 6 inches from the edge of the platform; and that the cable was from 6 to 18 inches from the nearest check line. It is conceded that, at the time he was killed, the plaintiff's intestate was a boy 16 years of age. In regard to his death, the trial judge, in charging the jury, said: “There was nobody who saw this boy hurt or killed; nobody who saw him from the time he started up from the basement, or down from the top of the building, whichever it may have been, until after he was dead. * * * You will remember that he cried...