Musbach v. Wisconsin Chair Co.

Hodge, J. The first and principally argued contention is that there was no evidence from which could have been reached a finding of negligence on the part of the defendant proximately causing the explosion in question. The plaintiff’s theory, and that upon which alone the verdict in this case rests, is that a leak existed in the pipes under the floor, from which enough gasoline escaped to supply vapor to fill the basement and make its way upward through the interstices in the floor, and to mix with the air in the required proportion to form an explosive compound in the embossing room. There is certainly no direct evidence — 66 — to establish this theory, unless the very fact of explosion necessitates such conclusion. There is no evidence that there was any leak in the basement. True, the looseness of the vertical pipe in its joint below the floor might have resulted in a leak, and the air gauge indicated an unusual escape somewhere in the pipe system, but the facts disclosed negative the conclusion that any leak at the loose joint was responsible for falling pressure on the air gauge; for when that joint was tightened — and, according to the undisputed evidence, it was completely tightened, at least temporarily — the pressure gauge continued to fall as before. On the other hand, the later investigation did discover a leak about the union connection with the tank outside, which accounted for the conduct of the pressure gauge. Not only was there absence of affirmative proof of any escape of gasoline in the basement, but the theory of a volume of either inflammable or explosive gas existing there was negatived beyond controversy by the physical fact that neither explosion nor combustion.there took place. The same interstices through which the gas must have made its way from, the basement to the floor above, upon the plaintiff’s theory, would inevitably have carried the flame from the floor above to the gas below, and caused either explosion, if the proportion of gas to air was small enough, or combustion of great violence. This physical fact of absence of explosion or combustion below the floor is such as human testimony, opinion, or theorizing cannot overcome (Cawley v. La Crosse City R. Co. 101 Wis. 145), and of itself is sufficient to defeat the plaintiff’s theory submitted to the jury by the sixth interrogatory and adopted by them. Apart from this complete negation of the theory of escape of gas from a defect in the pipes under'the floor, the question whether such escape was responsible for the explosion and plaintiff’s injury was so without evidence to support an affirmative answer that it should not have been submitted — 67 — to the jury. If, indeed, it had appeared that presence of gas in the room where the embossing machines were, such as to cause this explosion, could not have existed, or, perhaps, ordinarily would not have existed, but for some defect in the apparatus which ordinary care could have guarded against, the jury might have been justified in ascribing the plaintiff’s injury to the defendant’s negligence, upon the doctrine of Cummings v. National F. Co. 60 Wis. 612; and Carroll v. C., B. & N. R. Co. 99 Wis. 399. That doctrine is that where both the apparatus and the operation of it are in the control of the defendant, and the accident is one which ordinarily could not happen except by reason either of defect in the apparatus or negligence in its operation, a presumption of' one or the other arises sufficiently from the happening of the accident to justify a verdict against the defendant. But in this case, by uncontradicted evidence, it is established that there was another and entirely adequate cause which might have accounted for the presence of the explosive gas, namely, the habit of the co-employee Wolf to permit a slight flow of gasoline from his burner after it was extinguished. This gasoline, dripping from the end of the burner upon the heated iron, would, of course, be vaporized with great rapidity, and there is uncontradicted testimony that enough gas might thus be formed in half an hour to fully account for the explosion. Considerably more than that time is shown to have elapsed with the burners extinguished, after the plaintiff and Wolf commenced work, and before the catastrophe. Were the explosion thus caused it would most clearly be due, not to the ordinary dangers of the operation of the apparatus properly handled, but to the negligence of a co-employee of the plaintiff, from which, of course, liability could not result against the common employer. Dahlke v. Illinois S. Co. 100 Wis. 431; Portance v. Lehigh Talley C. Co. 101 Wis. 574. With these two possible causes to account for the expío — 68 — sion, the burden of proof, of course, rested on the plaintiff to prove the one for which the defendant would be liable. It did not suffice that one might be as probable as the other. It was not the situation of two possible causes, one or the other of which the jury must adopt, and, if they did not find Wolf’s negligence established, must therefore assume the hypothesis of a defect. The existence and proximate efficacy of the defect was required to be established by reasonably direct proof, while only the reasonable possibility of causation by Wolf’s negligence need be proved to prevent presumption of a defect being necessarily drawn from the accident itself. That possibility, as already stated, was proved without controversy. The sixth question, however, submits the two causes to the jury, for adoption of one or the other, as if they stood on an entire parity as to quantum of proof necessary to give either its legal effect. This was erroneous. The real jury question, had there been any evidence to justify it, would have been whether the jury found a preponderance of reasonably direct evidence that leakage from the pipes caused the explosion, in view of the established possibility that it might have resulted from Wolf’s negligence. That no such evidence existed was, however, entirely clear. The only attempted proof was the testimony of the chemical expert Prentice that “ it is possible ” for enough gas to make its way upward through such interstices in the floor to cause the explosion. On cross-examination, he said he had no idea of the time necessary; assumed a reasonable time; nota hundred years; had no idea of the quantity of gasoline necessary to create gas enough to fill the cellar. The defendant’s expert chemist, Eisher, testified, without contradiction, that at least twelve hours would be necessary for the process of diffusion, and that a pint of gasoline produces about threé and one-haLf cubic feet of gas, so that something like twenty gallons of gasoline must be evaporated to fill the space below the floor, without allowing for the very considerable outflow — 69 — through the cellar -window. It was shown positively that no wastage of gasoline, certainly more than a few quarts, could have occurred. Thus, even the “ possibility,” in form testified to by Prentice, became an impossibility, in view of the known circumstances. But, conceding the possibility that either such defect or negligence of Wolf was the efficient cause, choice between them could only have been based upon conjecture or guess. There was absolutely no evidence even tending to prove that the gas which exploded came from the basement and not from Wolf’s burner. The submission to a jury of such choice has been universally condemned, and by no court more vigorously than by this. It is not consistent-with the ■courageous assumption of responsibility and performance of judicial duty which litigants have a right to expect of trial courts. Berlick v. Ashland S. & F. Co. 93 Wis. 437, 445. If there is no reasonably direct evidence to establish the proximate efficacy of the cause alleged, the court should so ■decide, and should not, by submitting it to the jury, imply that the question is. an open one. The present case is a forcible illustration of the burdens cast on litigant^ by the ■opposite course. Already the expense of two long and burdensome trials and of an appeal to this court has fallen upon each of the parties, whereof a very large part would have been saved by a definite ruling, as soon as the evidence was in, that the plaintiff had not shown, by any reasonably direct evidence, that defendant had been guilty of negligence which caused his injuries. This subject received exposition in clear and incisive language, and with full citation of authority, by Marshall, J., in Hyer v. Janesville, 101 Wis. 371, 377; which case was followed in Gagan v. Janesville, 106 Wis. 662, where we said: “The plaintiff must show by reasonably direct evidence that the defect, and not .something else, caused the injury.” See, further, Hickey v. C., M. & St. P. R. Co. 64 Wis. 649; Spencer v. C., M. & St. — 70 — P. R. Co. 105 Wis. 311; Louisville Gas Co. v. Kaufman, 48 S. W. Rep. 434. The danger of a miscarriage of justice and of a verdict in. favor of the suffering plaintiff without evidence to support it was enhanced in this case bj the charge, which is in direct disobedience of the rule so recently elaborated, that where a special verdict is taken it is not only improper but erroneous to instruct the jury generally upon the law of the-case and, especially, so as to give them information of the-legal effect of the answers to the special questions submitted. Kohler v. West Side R. Co. 99 Wis. 33; Ward v. C., M. & St. P. R. Co. 102 Wis. 215; Baxter v. C. & N. W. R. Co. 104 Wis. 307, 318; Fox v. Martin, 104 Wis. 581-587; New Home S. M. Co. v. Simon, 104 Wis. 120. In this case, where seventeen questions were submitted to the jury going largely into the detail of facts, we find no instruction which is exT pressly addressed to anyone of those questions, but, on the contrary, an exhaustive charge as to the law governing the employer’s responsibility, indicating fully what circumstances, would result in imposing and what in excusing from liability. Especially as bearing upon the consideration of the sixth question above discussed, we find the jury informed: “ If you should determine from the evidence that the injury to the plaintiff was caused by the negligence of Charles Wolf in and about his employment in operating an embossing machine in the same room in which the plaintiff was at work,, and further determine from the evidence that the defendant-exercised reasonable care and diligence in employing said Wolf, then the defendcmt would not Toe liable for the injury* complained of.” This instruction clearly notified to the jury that if in this field of conjecture, where, as already pointed out, there was no direct evidence to compel them, however conscientious, to say that one cause was proved rather than the other, they adopted the second alternative, namely, the careless handling of the burner by Wolf, they left the in — 71 — jured plaintiff without remedy for bis suffering, while, if they adopted the other theory, they shifted onto the defendant employer the burden of compensating him pecuniarily therefor. A jury can hardly be blamed, under such circumstances, for preferring and adopting that guess towards which their human sympathies impel them. Other instances of the same vice in the charge might be pointed out, but, as the subject has been so fully treated in the later cases above cited (which, by the way, have emanated from this court since the trial of the present case), and as the views we have expressed upon the merits of the controversy are conclusive of the appeal before us, it is not deemed necessary to enter upon a discussion of them. The giving of such instructions was an error for which the judgment should be reversed, but which is overshadowed by the predominant mistake of treating the case as if there were any evidence on which a jury might have held, the defendant liable. Other errors, going principally to the detail of the trial, are assigned but only perfunctorily argued, and, for the reason just above mentioned, we deem it unnecessary to discuss or decide whether they are well assigned. It is clear, for the reasons above stated, that error was committed in refusing to direct a verdict for the defendant and in refusing to set aside the answers, certainly to the sixth; seventh, twelfth, and fifteenth questions, for which error the judgment must be reversed. By the Qowt.— Judgment reversed, and cause remanded for new trial.