Zartner v. George

• Court: Wisconsin Supreme Court
• Writing for the Court: VINJE
• Citation: Zartner v. George, 156 Wis. 131, 145 N.W. 971 (Wis. 1914)
• Decision Date: 24 February 1914
• Parties: ZARTNER v. GEORGE ET AL.

156 Wis. 131

145 N.W. 971

ZARTNER

v.GEORGE ET AL.

Supreme Court of Wisconsin.

Feb. 24, 1914.

Appeal from Circuit Court, Milwaukee County; Orren T. William, Judge.

Action by Irving Zartner by guardian, against John George and others, copartners. Judgment for defendants, and plaintiff appeals. Affirmed.

Action for personal injury. The defendants, who were engaged in mason work in Milwaukee shortly before they quit work on August 1, 1911, filled a mortar box with lime and water, over which they spread a covering of about two inches of sand, and left it in that condition, uncovered and unguarded. It stood on a private lot near a building that was being erected. Plaintiff's testimony shows it stood from 4 to 5 feet back from the sidewalk, while that of the defendants is that it was from 20 to 24 feet in on the lot from the sidewalk. The box was about 4 feet wide, 7 feet long and 15 or 16 inches deep. Near it on the lot was a pile of sand. The plaintiff, a boy six years and ten months old at the time of his injury, and who lived in the neighborhood of where the box was located, with other boys went on to the lot to play, jumped into the box, and sustained serious burns on his feet from the hot lime before he got out.

The court admitted evidence to the effect that it was the custom of masons in Milwaukee and vicinity to leave mortar boxes situated as this was, unfenced and uncovered, and, at the close of the evidence, it directed a verdict for defendants. From a judgment entered thereon, the plaintiff appealed.

Timlin, J., dissenting.C. H. Hamilton and Julius E. Roehr, both of Milwaukee, for appellant.

A. J. Hedding, of Milwaukee (H. L. Kellogg, of Milwaukee, of counsel), for respondents.

VINJE, J. (after stating the facts as above).

[1][2] Was evidence of custom of leaving mortarboxes uncovered in Milwaukee properly received? In answering this question, the distinction between proving a custom which is to affect or establish contract relations and a custom which affects, but does not necessarily determine, negligence, should be borne in mind. Pier v. Chicago, Milwaukee & St. Paul R. Co., 94 Wis. 357, 68 N. W. 464. When evidence as to custom is introduced for the purpose of characterizing an act as negligent, because not performed in the usual manner, or as nonnegligent, because so performed, a different rule prevails than when it is introduced for the purpose of affecting or establishing a contract relation. In the latter case it must be shown that the custom is so general and of so long standing that both parties must be presumed to have knowledge of it, and to have contracted with the understanding that it should apply to and affect their contract. Lemke v. Hage, 142 Wis. 178, 125 N. W. 440, 135 Am. St. Rep. 1066. In the former case it is not necessary that either party should know what the custom was as to how an alleged negligent act was done at the time it was done. Evidence thereof is received for the purpose of ascertaining whether or not the act was done as it is usually done under the same or similar circumstances in order to aid the court or jury in correctly determining the quantum of negligence in the act complained of. Nadau v. White River Lumber Co., 76 Wis. 120, 43 N. W. 1135, 20 Am. St. Rep. 29. It follows from this that, if the act in question is obviously dangerous, then evidence of custom is inadmissible, because custom cannot change the quality of an act. It can only aid in determining what that quality is. Hence, when its quality clearly appears from the act itself, there is no need to invoke the aid of custom to determine it. Our court has consistently so held. Innes v. City of Milwaukee, 96 Wis. 170, 70 N. W. 1064;Leque v. Madison Gas & Electric Co., 133 Wis. 547, 113 N. W. 946;Bandekow v. Chicago, B. & Q. R. Co., 136 Wis. 341, 117 N. W. 812;West v. Bayfield Mill Co., 144 Wis. 106, 128 N. W. 992, 45 L. R. A. (N. S.) 134;Jensen v.Wisconsin Central Co., 145 Wis. 326, 128 N. W. 982;Merton v. Michigan Central R. Co., 150 Wis. 540, 137 N. W. 767;Krawiecki v. Kieckhefer, 151 Wis. 176, 138 N. W. 710.

[3] In the case at bar, the evidence of custom was properly admitted for the purpose of aiding the court or jury in determining the character of the alleged negligent act, which cannot be said to have been obviously dangerous, taking into consideration the fact that the mortar box was located on private property some distance from the street; for it matters not whether the plaintiff's or the defendants' evidence is true as to the location of the box. In either case it was far enough from the sidewalk not to affect public travel thereon, or to be any source of danger to those who remained on the sidewalk or street. The evidence shows that the custom of leaving mortar boxes uncovered in the summer time was general not only in Milwaukee but in the vicinity thereof, and it was proper to receive such evidence.

[4] The only other matter for consideration is: Should the court have submitted the question of defendants' negligence to the jury? The evidence showed not only that it was the custom in Milwaukee and vicinity to leave mortar boxes, in the summer, as this was left, unfenced and uncovered, but it showed, without contradiction, that in the summer time it was necessary to leave them uncovered in order not to get the lime so hot that it would burn and that it was likewise necessary to spread a thin coating of sand over them so that the lime would not get too soggy. It thus appears that, in order to secure the right kind of slacking in the summer time, it is necessary to leave the boxes uncovered and to put on a thin coating of sand. That being so, the only other way that now occurs to us in which the work could be properly done so as not to enable children to jump into the slacking lime would be to fence the mortar boxes in by an inclosure, boyproof, or else protect them on top by a secure wire netting--certainly no small task.

It is conceded that the box with the sand covering the lime and the adjacent sand pile were attractive to children, as is almost every object or appliance that can be mentioned. And the evidence showed, too, that children were in the habit of playing about the place where the work was carried on. In this respect it was subjected to no greater burden than places in the vicinity of children usually are, for children are omnipresent, though lacking many of the attributes that should attend such a quality.

So we are squarely faced with the question whether or not a person may, upon his own premises, pursue a useful occupation in a usual and necessary manner which is not obviously dangerous to others, without incurring liability to trespassers, though he may reasonably anticipate that children may come in upon his premises, meddle with the work, and be injured? In other words, shall the doctrine of the turntable cases, or of attractive nuisances, in its widest scope be applied to the conduct of ordinary business carried on in a customary manner upon private property? It has not yet so been applied in our state.

In Klix v. Nieman, 68 Wis. 271, 32 N. W. 223, 60 Am. Rep. 854, the question arose as to whether the owner of a city lot upon which there was an unfenced and unguarded pond was liable in damages for the death of a boy who, while playing about the pond, fell in and was drowned. The court held there was no liability on the part of the owner. In that case Chief Justice Cole quotes from Hargreaves v. Deacon, 25 Mich. 1,where it was held that the owner of a cistern located upon his property was not liable for the death of a child of tender years who fell into it because it had been left uncovered, and then adds: “There is a class of cases which holds the proprietor liable for injuries resulting to children from dangerous machinery left unguarded and so exposed as to be calculated to attract their interference with it”--citing Railroad Co. v. Stout, 17 Wall. 657, 21 L. Ed. 745;Keffe v. M. & St. P. R. Co., 21 Minn. 207, 18 Am. Rep. 393, and Koons v. St. L. & I. M. Railway, 65 Mo. 592. The Klix Case was quoted approvingly in Gorr v. Mittlestaedt, 96 Wis. 296, 71 N. W. 656, where it was held that the owner of a dangerous place near a highway, but far enough removed therefrom so that a traveler must necessarily wander from...