Stasek v. Banner Coffee Co.

159 N.W. 945, 164 Wis. 538, 1917 Wisc. LEXIS 7

Opinion

The following opinion was filed November 14, 1916:

WiNsnow, O. J.

The judgment must be affirmed. The statute regulating the sale of poisonous drugs and chemicals plainly does not apply to the sale of articles of merchandise in whose manufacture some poisonous drug or chemical may have been incidentally used. To so hold would be to extend the act by construction to cases manifestly not intended to be covered by it.

When the jury found that the packages were delivered in the manner in which such deliveries were customarily made, and that the defendant could not have anticipated that injury would happen to another by reason of the manner of the delivery, they found the facts which absolutely negatived actionable negligence. These findings of fact necessarily control the question of ordinary care and justify the court in changing the answer to the third question of the verdict and striking out the answer to the fourth question. If the delivery was made in the usual and customary way under similar circumstances, it follows that ordinary care was exercised unless such custom is so obviously dangerous to life or limb as to be recognized as snob by all intelligent people. Bandekow v. C., B. & Q. R. Co. 136 Wis. 341, 117 N. W. 812.

By the Court. — Judgment affirmed.

Esciiweilee, J., took no part.

A motion for a rehearing was denied, with $25 costs, on January 16, 1917.