Galst v. American Ladder Co.

Rosenberry, J. The law claimed to be applicable to this case, so far as established by the decisions of this court, is to be found in Bright v. Barnett & Record Co. 88 Wis. 299, 60 N. W. 418; Hasbrouch v. Armour & Co. 139 Wis. 357, 121 N. W. 157; Kerwin v. Chippewa S. M. Co. 163 Wis. 428, 157 N. W. 1101. Plaintiff does not claim that the step-ladder in question was an article inherently dangerous, but that it was one which by reason of negligent construction was manifestly dangerous when used as it was intended to be used, and that therefore the defendant, who manufactured and delivered the ladder in question without notice of its dangerous character due to its defective construction, is liable to plaintiff, who was injured. In the view that we take of this case it will not be necessary to discuss the law as to the liability of a manufacturer of a standard article intended for a certain use which is dangerous on account of faulty construction. [310] In any event, in order to make a manufacturer liable, it must appear that tbe article left the hands of the manufacturer in a faulty condition. There is no claim in this case that the method adopted for preventing the spread of the ladder was not a proper one to be adopted. The condition of the ladder was testified to by two witnesses. The witness (Harrow said: “I looked it all over and called several witnesses to see what the damage was. I found that' the rope had slipped from the tie in the staple. I examined the staple and found that it was loose. The hitch had pulled out from the staple. I should say the staple was out a little over a quarter of an inch. The staple, it seems, had not been fastened strong enough and that pulled through.” Blakely, a witness for the defendant, testified: “On this ladder you can see where the staple was driven down in there by the impression in the wood. Q. What have you to say about that staple being down tight now? A. It is absolutely in the right place and it was.” It appears that the ladders in question were ordered from the defendant company by Patek Brothers, local dealers, in July, and received by them August 2, 1911, and were delivered by Patek Brothers on February 10, 1912. The testimony on the part of the defendant showed that the ladders were repeatedly inspected during the process of manufacture and prior to shipment were again carefully inspected; that part of the inspection consists in the examination of the rope and staples, and that the present case is the first instance in which the rope or cord had been known to pull through a staple in eight years’ experience; and that a ladder found defective was immediately taken out and not shipped to customers. The ladder in question was handled at least five times after it left defendant’s hands before it was used, and it is a matter of common knowledge that the staple might have been loosened by careless handling .and in other ways. Under [311] such circumstances testimony that the staple was loose on the morning of Eebruary 10, 1912, comes far short of establishing the fact that the staple was loose at the time it left the hands of the manufacturer in August, 1911. The situation here is quite different than it would be if the defect were a knot, cross-grained or dozy material, or other inherent defects of a similar kind USTo inspection was made of the ladder by the retail dealer* by the firm who purchased it, or by the man who used it, prior to the time of the accident. The evidence as a whole tends to establish the fact that there was a change in the condition of the ladder between the time it left the hands of the manufacturer and the time it was used by the plaintiff. Without proof that the ladder was defective when shipped by the manufacturer, plaintiff cannot recover under any theory of the law. Plaintiff contends that by reason of the failure of the defendant to make a motion to vacate the judgment with a motion to set aside the verdict and grant a new trial the appeal is not properly before this court. Bailey v. Costello, 94 Wis. 87, 68 N. W. 663. We think it appears that the trial court treated the motion to set aside the verdict and grant a new trial as in effect a motion to vacate the judgment, and that fact sufficiently appears from the language of the trial court directing that the judgment entered upon the verdict stand as and for the judgment in said action, and that under the circumstances disclosed by this record the questions raised are properly before this court. By the Court. — Judgment reversed, and cause remanded with directions to dismiss the complaint.