Kalman v. Pieper

BabNes, J. The argument of respondent that the cable might have been pulled and the elevator started by some of the employees on the upper floors is eliminated from consideration by the answer of the jury to the first question in the special verdict. It must be conceded as a verity in this case that the application of power is what caused the elevator to ascend and that the shutting off of the power is what caused it to stop, the stopping being accelerated by the automatic application of the brake. The jury finds that no one touched the starting cable; the plaintiff says he brought the elevator to a stop, and Heller, Kieckhefer, and Eisher say that it was out of the question for the elevator to resume its ascent without the cable being pulled, because this was the only means of apply [492] ing tbe power necessary to raise it. Either their testimony is not correct or the plaintiff’s testimony is incorrect. As to ordinary questions of fact, the verdict of the jury is conclusive where there is a conflict in evidence. The testimony tending to show that the elevator was in a proper state of repair is not contradicted, and leaving the evidence of plaintiff out of consideration, no one knew of the elevator making such a movement before. Witnesses who had used it for two or three years say that no such thing occurred to their knowledge. If the movement in fact took place it was clearly an abnormal one, and the verdict of the jury indicates that the jurors so thought. We know that things said to be impossible sometimes happen. The laws of mechanics, however, are constant, and it cannot be gainsaid that it takes power of some kind to raise an elevator and that after the power is shut off the ascent will stop and will not begin again until there is a new application of power. The evidence is silent as to counterweights, but if the evidence of the plaintiff and other employees is true they could not exceed the weight of the elevator. If the movement took jfiace it was abnormal, and the reason for it is wholly unexplained. There have been a number of cases in this court involving-alleged abnormal and unaccountable movements of machinery. The rule of law governing such cases is stated in Groth v. Thomann, 110 Wis. 488, 495, 86 N. W. 178, as follows: “We have left, as the only matter covered by the verdict upon which, in any event, a recovery in plaintiff's favor could be justified, the finding that the mangle ran in an unsteady manner. We are unable to find any evidence in the record to support that finding except the evidence of respondent, who testified that the machine commenced to go Avrong about one hour before she Avas injured and that such difficulty was Avhat caused the injury. In vieAV of the undisj>uted evidence that there was no dis«werable defect in the mangle, that it ran evenly ever before and catu after the time in question, and that the connections between the machine and the motor [493] from which' tbe power was received were snob that any snob unsteady motion as claimed was practically impossible, we must say respondent’s evidence was contrary to all reasonable probabilities and did not raise a conflict of reasonable inferences for solution by tbe jury.” In Vorbrich v. Geuder & P. Mfg. Co. 96 Wis. 277, 283 et seq., 71 N. W. 434, and in Adams v. Menasha P. Co. 154 Wis. 577, 581, 143 N. W. 658, it is held that, while tbe plaintiff’s evidence tending to show an abnormal movement makes a prima facie case of negligence, sticb a showing is overcome by undisputed proof that the machine was in a proper state of repair and worked properly before and after the* accident. Tbe burden of proof is thus thrown on the plaintiff to explain the cause of the alleged abnormal movement, in some satisfactory manner. The following cases are to the same effect: Klitzke v. Webb, 120 Wis. 254, 97 N. W. 901; Montanye v. Northern E. Mfg. Co. 127 Wis. 22, 105 N. W. 1043; Lillis v. Beaver Dam W. Mills, 142 Wis. 128, 124 N. W. 1011; Michalski v. Cudahy Bros. Co. 152 Wis. 268, 138 N. W. 1002; Ruesch v. Sentinel Co. 153 Wis. 664, 140 N. W. 1085. The following additional authorities, although not so closely in point, in principle support the rule of the foregoing cases: Badger v. Janesville C. Mills, 95 Wis. 599, 70 N. W. 687; Cummings v. Nat. F. Co. 60 Wis. 603, 18 N. W. 742, 20 N. W. 665; Carroll v. C., B. & N. R. Co. 99 Wis. 399, 75 N. W. 176; Kimball v. Universal C. S. Co. 151 Wis. 114, 117, 138 N. W. 91; Flaherty v. Harrison, 98 Wis. 559, 74 N. W. 360. Under the decisions cited, the answers of the jury to the first and .second questions in the special verdict cannot stand. The respondent urges, however, that the jury having found that defendant was negligent in failing to instruct the plaintiff as to the use of the locking device, that such failure was the proximate cause of the injury, and that plaintiff was not guilty of any want of ordinary care which proximately con [494] tributed to bis injury, the judgment is supported by the verdict regardless of questions 1 and 2 and tbe answers thereto. This position is unsound in at least one respect, which we will proceed to point out. Obviously the court was in error in assuming in the first question that the plaintiff brought the elevator to a full stop. On the record as it presently stands, the jury would not be warranted in finding that he did so. The assumption that this fact was established and not in controversy necessarily took from the consideration of the jury the contributory negligence of the plaintiff in not stopping the elevator before proceeding to back into it. We cannot presume a finding of the court exculpating the plaintiff from -contributory negligence in this respect, because it affirmatively appears that the court thought the elevator had been stopped, and for the further reason that on the proofs as they stand such a finding would be against the clear preponderance of the evidence. We are not certain but that a subsequent trial may develop the fact that the plaintiff has a cause •of action; so it is deemed best to order a new trial. By the Court. — Judgment reversed, and cause remanded ior a new trial.