Klitzke v. Webb

97 N.W. 901, 120 Wis. 254, 1904 Wisc. LEXIS 58

• Court: Wisconsin Supreme Court
• Decided: January 12, 1904
• Status: Published

Opinion

Wiwsnow, J.

In order to show actionable negligence on the part of the defendants, the plaintiff relied solely on the doctrine of res ipsa loquitur. She gave ¿yidence to the effect that she was standing on the platform, that she did not touch the door, and that for some unexplained cause it fell upon her. Doubtless this was sufficient evidence, in the first instance, to raise a presumption that the door was negligently placed upon the platform by the defendants’ servants in such a position that it was liable to fall over without assistance, because, if securely and properly placed, it would not, in the ordinary course of events, fall over without some intervening or assisting cause. This doctrine has been approved many times in this court, and is not open to question. Cummings v. National F. Co. 60 Wis. 603, 18 N. W. 742, 20 N. W. 665; Vorbrich v. Geuder & P. Mfg. Co. 96 Wis. 277, 71 N. W. 434; Carroll v. C., B. & N. R. Co. 99 Wis. 399, 75 N. W. 176. The proof was sufficient, therefore, when the plaintiff rested her case, to take the question of defendants’ negligence to the jury. The defendants, however, met this presumption by direct and positive proof.that when the door was removed from its hinges on the morning of the accident and placed outside upon the platform its base was placed against a row of nail heads in the platform eighteen inches distant from and parallel with the building, and that it was leaned up against the building with its top just under a gas pipe which ran along on the outside of the building. This evidence was specific and uncontradicted. It is matter of' common knowledge that a door of the size and weight of the door in question, when placed in such a position under ordinary conditions, such as were present here, will not fall out-wards without assistance. The laws of gravitation forbid. Hence, when this proof came in, and was undisputed, the presumption of negligence from the mere happening of the accident was entirely overthrown, and nothing was left for the consideration of the jury. This principle also has been frequently declared, and is well established. Spaulding v. C. & N. W. R. Co. 33 Wis. 582; Vorbrich v. Geuder & P. Mfg. Co. supra, and cases cited. It follows that the defendants’ motion to set aside the verdict and for a new trial should have been granted.

By the Court. — Judgment reversed, and action remanded for a new trial.

Siebeckee, J., took no part.