Switzer v. Detroit Investment Co.

206 N.W. 407, 188 Wis. 330, 1925 Wisc. LEXIS 194

• Court: Wisconsin Supreme Court
• Decided: December 8, 1925
• Status: Published

Opinions

Eschweiler, J.

While those responsible for the operation of passenger elevators in buildings such as this are classed as common carriers so far as the extraordinary degree of care required of them by the law is concerned (Ferguson v. Truax, 136 Wis. 637, 118 N. W. 251), yet here plainly the plaintiff could not be considered a passenger in any sense of that term, and therefore the allegations of the complaint in that regard are not applicable to the facts here shown. In his complaint plaintiff did not assert that there was on the part of the operator that which is designated in this jurisdiction as gross negligence.

Plaintiff here admitted that he did not look to see if the elevator was in proper position, nor at the dial, if any such there were above the door, to learn the possibly indicated position of the elevator in the shaft, and he made no claim of insufficiency of light. There can therefore be no doubt, that plaintiff, in further opening the door and projecting himself forward into the shaft, failed to exercise ordinary care for his own safety. He placed himself in danger not only of falling down the shaft, but also from movement of the elevator in the shaft. The unlatched elevator door, as plaintiff approached, open as it was not to exceed four inches, was a warning signal rather than an invitation to enter. Bremer v. Pleiss, 121 Wis. 61, 98 N. W. 945.

Plaintiff contends, however, that the real proximate cause of his injuries was the alleged negligence of the elevator operator in permitting the elevator to descend from the point at which it had stopped just below the second floor and after the operator knew of- plaintiff’s peril, and that any prior negligence on his part in placing himself in such a position is immaterial because it ought not to be considered a proximate cause contributing to- his injuries.

Situations such as are here presented have been often met and discussed under what is frequently denominated as the doctrine of “the last clear chance,” “supervening negligence,” or “discovered peril.” The term “comparative negligence” is also sometimes used, but it should perhaps more accurately be confined to situations where the law permits of the jury’s determination of the respective proportions where each party is found negligent, as has been authorized by statute in certain actions against railroads, as presented in such cases as Tidmarsh v. C., M. & St. P. R. Co. 149 Wis. 590, 136 N. W. 337. Many courts have upheld the right of a plaintiff to recover, there being but ordinary negligence as distinguished from gross negligence, by defendant, intervening the injury and the negligence of plaintiff in placing himself where the accident occurred; some, such as Dyer v. Cumberland County P. & L. Co. 120 Me. 411, 115 Atl. 194, stating the rule to bé that the prior negligence of plaintiff creates but a condition and is not to be ' regarded as the proximate cause; others, like Chunn v. City & Suburban Ry. 207 U. S. 302, 309, 28 Sup. Ct. 63, holding that such subsequent failure to use reasonable care may be found to be the sole cause of the injury. A list of the holdings may be found in 29 Cyc. 530, and in a note to 28 A. L. R. 283.

This court, however, after repeated and full consideration of the question and of the decisions on both sides, has refused to recognize such a doctrine or rule of law as here contended for by plaintiff, and has suggested in Tesch v. Milwaukee E. R. & L. Co. 108 Wis, 593 (84 N. W. 823), at p. 604, that for any change in such so declared public policy resort should be had to legislative action.

In Lockwood v. Belle City St. R. Co. 92 Wis. 97, 65 N. W. 866, there was a full discussion of the subject and a holding that there could be no recovery in the absence of a showing of grosá negligence on a motorman’s part after he discovered plaintiff’s perilous position caused by plaintiff’s negligence, and that a finding of a lack of ordinary care by the motorman was insufficient to support a recovery. This case declares (p. 111) that the doctrine of the three degrees of negligence — slight, ordinary, and gross — is here firmly established, and this doctrine is reiterated in Astin v. C., M. & St. P. R. Co. 143 Wis. 477 (128 N. W. 265), at p. 483; and again in Bentson v. Brown, 186 Wis. 629, 633, 203 N. W. 380, 38 A. L. R. 1417, and note. The same division of degrees is also recognized in Altman v. Aronson, 231 Mass. 588, 593, 121 N. E. 505.

The subject was again considered and the same result reached in Bolin v. C., St. P., M. & O. R. Co. 108 Wis. 333, 84 N. W. 446, citing (p. 346) with approval what was said in White v. C. & N. W. R. Co. 102 Wis. 489 (78 N. W. 585), at p. 496, that where defendant’s negligence is short of that defined as gross, contributory negligence by plaintiff defeats recovery. Again in Tesch v. Milwaukee E. R. & L. Co. 108 Wis, 593, 601, 84 N. W. 823. In Watermolen v. Fox River E. R. & P. Co. 110 Wis. 153, 85 N. W. 663, the court said that a finding of contributory negligence by plaintiff required a judgment for defendant even though it was found that a motorman failed to exercise ordinary care after discovering the danger of a collision (p. 158) ; and this is cited with approval in Owen v. Portage Tel. Co. 126 Wis. 412, 105 N. W. 924. See, also, Lotkarius v. Milwaukee E. R. & L. Co. 157 Wis. 184, 146 N. W. 1122.

Several cases in this court are cited by appellant as sup.porting the position he takes here, but such cases are expressly or by implication overruled and no longer correct expositions of the law, such as the following: In Woodard v. West Side St. R. Co. 71 Wis. 625, 38 N. W. 347, without discussion or consideration of authorities, it was held that a plaintiff might recover for injuries caused by being dragged alongside of a street car which he had carelessly tried to board and being caught in the door handle by a ring on his finger, if the driver could have avoided the injury by the exercise of ordinary or reasonable care after he was notified of plaintiff’s peril. This decision does not seem to be cited in any subsequent case. The same doctrine, and in the same manner, was declared in Valin v. Milwaukee & N. R. Co. 82 Wis. 1, 51 N. W. 1084, that supervening negligence need not be gross negligence in order to authorize recovery (p. 16). This case is quoted in the Lockwood and Bolin Cases, supra, and declared out of harmony with other cases and to be incorrect. In Schmolze v. C., M. & St. P. R. Co: 83 Wis, 659, 53 N. W. 743, 54 N. W. 106, the rule stated in the Valin Case, supra, was apparently recognized as the law but held not applicable under the facts there.

The trial court, therefore, under the law here was required to grant the motion for nonsuit as he did.

By the Court. — Judgment affirmed.