Wilber v. Follansbee

The following opinion was filed October 22, 1897: Newman, J. The appellant assigns errors as follows: (1) .The rejection of her offer to prove that the work of improvement and repairs was being done by an independent [581] contractor. (2) The refusing to admit in evidence the contract under which the work was being done. (3) The admission of testimony to show the condition of plaintiff's health before and after the accident, without showing any causal relation between the accident and her alleged altered condition of health. (4) The giving of several instructions excepted to. (5) [Refusing to submit for special verdict questions requested by the appellant. (6) The verdict is not sufficient to support the judgment. (7) The refusal to set aside the verdict and grant a new trial. 1. On this point the case is ruled by the recent case of Wertheimer v. Saunders, 95 Wis. 573. In that case it was held, on full consideration, that the landlord, in making repairs and improvements to the demised premises, owes a duty of reasonable care to the occupying tenants, which he cannot escape by placing the work with an independent contractor ; especially if the work to be done is attended with danger to the tenants. Evidently, the accomplishment of the improvements and repairs contemplated would render some degree of danger imminent to such as should use the stairways and halls during its progress. So, the fact that the work was being done by an independent contractor was entirely irrelevant to the question of the defendant’s liability. This is entirely aside froin the question of the defendant’s liability to her tenant to make repairs. She made them voluntarily, and for the advancement of her own purposes. It is immaterial whether the hall and stairway were a part of the premises demised to the plaintiff. They were intended and used for the convenience of all the tenants of the building. The plaintiff had the undoubted right to use the stairway for a convenient Avav of access to and egress from the apartments leased by her. The defendant had no right to make the way inconvenient or dangerous to her use. Dollard v. Roberts, 130 N. Y. 269; Peil v. Reinhart, 127 N. Y. 381; Looney v. McLean, 129 Mass. 33. [582] 2. The contract in evidence, if received, could only go to prove an irrelevant fact. Its exclusion was not erroneous. 3. The fact itself of the plaintiff’s good health previous to the accident, together with the fact that impaired health followed it and continued, is evidence which tends to prove that the accident was the cause of the impairment of health, and, in some circumstances, would alone be sufficient to establish it. But this evidence was supplemented by the testimony of the physician who dressed her wounds and attended upon her recovery. He testified to nervous shock and serious derangement of the nervous system immediately following the accident, where no such trouble existed before. The evidence was competent and sufficient to support a verdict that the accident was the cause of the impaired health. There was no error in the reception of the testimony, or the refusal' to strike it out. 4. The principal objection urged against the charge, and relied on, relates to the definition of the term “ proximate cause.” The court said: “ The proximate cause is an immediate cause,— a cause which does not require the intervention of any other cause. It is also sometimes defined to be a cause from which a person of ordinary intelligence would anticipate or might anticipate the result -which is claimed to have followed.” The most obvious criticism of this instruction is that it does not instruct. To be useful, an instruction should not, as a rule, be the statement of a mere legal proposition, but should state the rule of the law as applicable to the facts of the- particular case. No doubt all that the judge said Avas correct, but it may well be doubted if it at all illuminated the case to the apprehension of the jury. The “ proximate cause” is the immediate cause,- — in the sense of nearest cause,— and does not admit the intervention of any other cause. It is also sometimes defined, as the judge stated, as' a cause from Avhich a person of ordinary intelligence should anticipate some accident. But it may well be doubted if all [583] tbis definition really conveyed to tbe jury any adequate information of wbat is meant by tbe term “proximate cause,” as applied to tbis particular case and accident. In tbis case tbe cause of tbe accident was manifest. It was tbe presence of some obstructive matter, on wbicb tbe plaintiff stumbled or slipped. Tbe case called for no discrimination between proximate and remote causes. Tbe one cause wbicb appeared Avas sufficient if it was proximate in tbe legal sense. Tbe sole question was, Was tbis cause proximate to tbe accident? Tbe test is whether it is such that a person of ordinary intelligence and prudence should have foreseen that an accident was liable to be produced by that cause. Tbe judge informed tbe jury that it was sometimes defined in that way. It would probably have been more helpful to tbe jury bad be stated directly that that was tbe test to be applied in this case. But be Avas not asked to give that instruction. Wbat the judge did give was not erroneous. It was not so luminous as it might have been. If tbe defendant desired more full or more direct instructions, she should have asked for them. McCoy v. Milwaukee St. R. Co. 88 Wis. 56. 5. The defendant did not elaborate tbis point in' bis brief, and it is not quite certain to wbat it was intended to be applied. It is supposed, however, that it relates more especially to tbe fourth question of tbe defendant’s proposed special verdict. It was: “Was tbe presence of water, rubbish, or debris, on tbe floor of the ball, tbe proximate cáuse of the accident?” At least, tbis Avas the question proposed to cover tbis point of proximate cause. It is not perceived in - wbat respect the fifth question in tbe verdict, as found by tbe jury, fails to cover tbe ground intended to be covered by this question. 6. Tbe only grounds alleged of insufficiency of tbe special verdict not sufficiently covered by wbat has already been said relate, to tbe. question whether the defendant bad sufficient notice of tbe condition of tbe hallway and stairs. Tbe [584] verdict finds that she bad knowledge of its condition “ at the time of the accident.” It is said that this is not sufficient notice; that she should have had notice a sufficient time before the accident to have enabled her to have removed the cause of danger. But it was not necessary that she should have actual knowledge of the defect. Her duty was that of due care. Ignorance of the defect was no defense. Lindsey v. Leighton, 150 Mass. 285; Wertheimer v. Saunders, 95 Wis. 573. 7. This is covered by what has been already said. No reversible error is found. By the Court.— The judgment of the circuit court is affirmed.