Brendlson v. Ed. Schuster & Co.

OweN, J. Tbe order of tbe circuit court reversing tbe judgment of tbe civil court and ordering a new trial in tbe circuit court must be affirmed. Tbe record discloses a question for tbe jury. Plaintiff and ber companion, Mrs. Stock-man,- testified positively that tbe elevator moved while tbe doors were open. Defendant contends that it effectually and conclusively met this testimony by showing that the construction of tbe elevator rendered it a mechanical impossibility to move tbe elevator while tbe doors were open, thus bringing tbe case within tbe doctrine of Kalman v. Pieper, 158 Wis. 487, 149 N. W. 203, and cases cited in tbe opinion therein, wherein it is held that a prima facie case of negligence grounded upon an abnormal movement of a machine is fully overcome -by proof that the machine was in a proper state of repair, and that, under such circumstances, tbe movement claimed to have resulted in injury could not have occurred. This contention would have to be accepted if it were not for tbe further evidence in this case that tbe elevator would move up or down by use of tbe electric button located beneath tbe glass covering. True, Kaestner, tbe operator of tbe elevator, and Rutzen, the engineer and electrician for tbe defendant company, testified that tbe glass covering was in proper position at tbe time of tbe accident. Whether it was or not depends upon tbe truth of their testimony. If tbe testimony of tbe plaintiff and Mrs. Stockman be true, it is reasonably •certain that tbe glass covering was not in proper position. On tbe other band, if tbe glass covering was in proper position, tbe testimony of tbe plaintiff and Mrs. Stockman to tbe effect that tbe elevator was moved while tbe doors were open, is untrue. We can see in tbe case nothing but a clear question of veracity between tbe witnesses who say that tbe elevator moved while tbe doors were open and those witnesses who testify that tbe [569] glass covering was in its proper position at tbe time of tbe accident. Tbe question of wbicb are to be believed is for tbe jury. Tbe court is not acting witbin its proper judicial province when it directs a vérdict- under such circumstances. By the Court. — Order affirmed. *