Wilczynski v. Milwaukee Electric Railway & Light Co.

Rosenberry, J. Upon this appeal the defendant contends that the plaintiff cannot recover because her assignor, the Kanawha Fuel Compan}*-, was guilty of contributory negligence as a matter of law which proximately caused Karbowski’s injury; that such contributory negligence of the Kanawha Company bars plaintiff’s action, since she sues as assignee of that compan}'; and that'the defendant’s negligence was not a proximate cause of Karbowski’s death. In view of the conclusion which we have reached we shall not treat the questions raised under the first two assignments of error. If the negligence of the defendant company was not the proximate cause of Karbowski’s death, the defendant cannot be held liable in any event. It appears practically without dispute that the negligence of the defendant company consisted in its failure to properly repair and install the motor, as it was bound to do under its contract with' the Fuel Company, and that such negligence resulted in the motor frame and the apparatus controlling the bucket becoming heavily charged with dynamic electricity. It is further undisputed that the Fuel Company through its employees and the deceased Karbowski were fully apprised of the danger in using the motor, and the apparatus controlling the bucket, in that condition. The continued use of the apparatus in its then known condition would have constituted contributory negligence as a matter of law. The deceased saw Bartls thrown several feet by coming in contact with the bucket. In the absence of some intervening act, no sane man would have continued to use the apparatus. The Fuel Company by its employees assumed and attempted to 'make such a repair as would render the apparatus reasonably safe. Its failure to do this was the immediate and proximate cause of decedent’s injury. [513] In a physical sense it may be said that the negligence of the defendant contributed to the injury, for had not the motor been insufficiently repaired and improperly installed the dynamic current would not have been present in sufficient amount to be dangerous. In order to make defendant liable its negligence must not have been only a cause, but a proximate cause — that is, an immediate cause — of Karbowski’s death. This court has said: “Whenever a new cause [independent intervening circumstance] intervenes which is not a consequence of the first wrongful cause, which is not under the control of the wrongdoer, which could not have been foreseen by the exercise of reasonable diligence by the wrongdoer, and except for which the final injurious consequences would not have happened, then such injurious consequences must be deemed too remote to constitute the basis of a cause of action.” Morey v. Lake Superior T. & T. Co. 125 Wis. 148, 103 N. W. 271. The circumstances in this case show that the act of the Fuel Company’s employees answers every call of the definition of an intervening cause, which renders the negligence of the defendant company so remote that it cannot be said to be a proximate cause of Karbowski’s injury. The defendant company could not reasonably anticipate that workmen who'had discovered the presence of a powerful dynamic electrical current which appeared to them to be so dangerous that they desisted from all work, would make a repair, especially when, as here, they knew absolutely nothing about electricity or electric apparatus. Horton v. Forest City Tel. Co. 146 N. C. 429, 59 S. E. 1022. In Kumba v. Gilham, 103 Wis. 312, 79 N. W. 325, it was held that one is not required to anticipate the improper conduct of a third party. In this case the attempted repair was not only improperly made, but done in direct violation of regulations made pursuant to statute. The ineffectual attempt of the Fuel Company’s employees to make the repair had the effect of assuring decedent that the place was reasonably safe, and he re [514] sumed his work relying upon that assurance. Karbowski undoubtedly believed that by reason of the attempted repair the element of'danger was entirely removed and that the place in which he worked was reasonably safe. He had full knowledge of the effects of the defendant’s failure to perform its duty. The thing upon which he relied in again entering the danger zone was the act of the Fuel Company. The negligent act of the Fuel Company’s employees, and so the act of the company, was therefore the immediate and proximate cause of his death, rather than the negligence of the defendant, which by the intervening act of the Fuel Company had become remote and not a proximate cause. Seaver v. Union, 113 Wis. 322, 89 N. W. 163. We are of the opinion, therefore, that the trial court was in error in awarding judgment against the defendant. By the Court. — Judgment reversed. Siebecker, Vinje, and Owen, JJ., dissent.