Carroll v. Chicago, Burlington & Northern Railroad

75 N.W. 176, 99 Wis. 399, 1898 Wisc. LEXIS 86

• Court: Wisconsin Supreme Court
• Decided: May 3, 1898
• Status: Published

Opinion

Winslow, J.

The defendant’s contention is that there is no evidence in the case showing negligence, and that the accident was not one from the happening of which, alone, negligence can be inferred. The evidence shows beyond dispute that the plaintiff came rightfully to the window to present the order for Malloy’s pay, pursuant to an express invitation by the defendant’s employee Dolson, and in accordance with the custom established by the defendant, of paying off its employees through this open window. It certainly would be very natural for persons advancing to the window for such purpose to reach their hands partially through the open window, or rest them upon the ledge, and the testimony showed that such acts were frequent and customary. Under such circumstances, the verdict of the jury, to the effect that such an injury as happened to the plaintiff ought reasonably to have been anticipated, is based upon sufficient testimony. The evidence also showed without contradiction that the window and the catch were 'both in perfect condition, and that the window had never been known to fall before or since, and would not fall if the catch were-properly set. These facts clearly show that the .fall of the window must have resulted from Dolson’s failure to set the catch, and makes the accident one where a presumption of negligence is raised from the mere fact of the happening of the accident itself. The evidence being conclusive that the window and the catch were in good order, it follows that the negligence so presumed must have been in the failure to properly set the catch. Chtmmings v. National Furnace Oo. 60 Wis. 603. Quoting from a sentence approved in that case: “ When the thing is shown to be under the management of the defendant or his servants, and the accident is such as, in the ordinary course of things, does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant, that the accident arose from want of care.” It is true that the agent, Dolson, testified that he set the catch, but we do not regard this testimony as conclusive upon the jury upon this question. The answers to the special questions are therefore supported by sufficient evidence.

There is a further claim made that Owrroll must be considered a uo-employee of Dolson. The evidence shows, however, that the plaintiff was not in the employ of the defendant, and that Mall037 had at some previous time been an employee, but had quit prior to the time of this accident; so this claim necessarily falls to the ground.

It was suggested that the answers to the special questions do not find negligence, but only that Dolson did not fasten the window, and that the failure to fasten the window is not necessarily negligence. This was not a special verdict, but the court of its own motion submitted to the jury certain particular questions of fact in addition to the general verdict. R. S. 18Y8, sec. 2858. In such case there is no requirement that the special questions submitted shall cover all the issues in the case. There being a general verdict, it necessarily’- covers all the issues, and there are no exceptions to the charge, and no additional instructions were asked by the defendant.

In any view which we have been able to take of the case, we have been unable to find any error.

By the Court.— Judgment affirmed.