Wilger v. Wisconsin Traction, Light, Heat & Power Co.

ViNJB, J. Defendant presents three grounds upon which the judgment should be reversed. Eirst, because it does not appear that the transformer was defective or out of repair; second, because, if out of repair, defendant was not chargeable with notice thereof; and third, because the deceased was guilty of contributory negligence as a matter of law. Having reached the conclusion that the undisputed evidence sustains the defendant as to the third ground it becomes needless to consider the other two. The jury absolved the deceased from contributory negligence and the trial court approved of such finding by entering judgment for plaintiff. Under such circumstances the evidence of contributory negligence must be clear and convine657 iug and be practically undisputed in order to warrant tbis court in disturbing the result. In this case the evidence relating to the negligence of deceased is undisputed, and we deem it so clearly spells negligence that the jury’s finding to the contrary, though approved by the court, cannot be permitted to stand. The only testimony touching the conduct of'the deceased at the time he met his death is that given by Mr. Schaeffler, the substance of which is set out in the statement of facts. From such testimony it appears that deceased knew a shock would be received by coming in contact with or in close proximity to the metal part of the switch. True, he did not know, and perhaps had no reason to believe, that it was charged with a deadly current; neither did he know that it was not. But it was not essential that he should have known the precise extent of the danger or injury. Coolidge v. Hallauer, 126 Wis. 244, 105 N. W. 568; Coel v. Green Bay T. Co. 147 Wis. 229, 133 N. W. 23; Dodge v. Kaufman, 152 Wis. 171, 139 N. W. 741; Luebben v. Wis. T., L., H. & P. Co. 154 Wis. 378, 141 N. W. 214. In Dodge v. Kaufman, supra, the rule is thus stated: “It is not necessary that the precise injury should be anticipated, or that it should be foreseen that an injury may happen in a particular manner. It is sufficient if an ordinarily careful and prudent person ought, under the circumstances, to have foreseen that an injury might probably result from the risk in question.” Deceased was a blacksmith forty-six years of age, and knew that electricity was a dangerous agent. He knew that Carr had that forenoon received a severe shock — so severe that a part of the flesh of his hand was actually adhering to the metal, or so believed to be by the deceased. Yet in spite of such knowledge and for no useful purpose, and not in the line of his duty as an employee, but merely to demonstrate to Schaeffler that a spark could be drawn from the metal part of [658] tbe switch, be makes tbe fatal experiment. It is evident that be did not intend to either open or close tbe switch, for be held tbe knuckle of bis little finger toward the metal part. He made no attempt to take bold of tbe handle. Tbe switch at tbe time was open and tbe handle stood out horizontally from tbe wall. A few moments before Schaeffler bad said be was going to take a drink and tbe deceased replied that be was going home — indicating that be did not want a drink and was not going to use tbe switch. It is strongly urged by plaintiff that deceased did not touch tbe metal part of tbe switch. This is probably true for two reasons — first, because Schaeffler walked about eight feet while deceased held bis knuckle near tbe switch before a spark was drawn, and second, tbe presence of a spark or flash would indicate that tbe current arced — 1 that there was some space between tbe knuckle and metal. That be intended to draw á spark and not point out something is evident from tbe fact that be used tbe knuckle of tbe little finger and not tbe index finger or tbe little finger itself— also from tbe fact that be brought tbe knuckle so close to tbe metal that it either touched or Schaeffler, who was only about six feet away from him, thought it touched. Such conduct on tbe part of an adult being but a voluntary useless experimentation with a known dangerous agency amounts to contributory negligence. Eor analogous cases see Billington v. Eastern Wis. R. & L. Co. 137 Wis. 416, 119 N. W. 127; Glander v. Milwaukee E. R. & L. Co. 155 Wis. 381, 144 N. W. 972; Stark v. Muskegon T. & L. Co. 141 Mich. 575, 104 N. W. 1100, and note to same in 1 L. R. A. N. s. 822. In Billington v. Eastern Wis. R. & L. Co., supra, plaintiff was held guilty of contributory negligence though be took bold of a live wire for tbe laudable purpose of placing it beyond tbe reach of children who were playing with it, and though, without real knowledge, be assumed tbe insulation of tbe wire would protect him from danger. By the Court. — Judgment reversed, and cause remanded with directions to dismiss tbe complaint.