Lipsky v. C. Reiss Coal Co.

Dodge, J".

Primarily the appellant contends that the verdict is wholly without evidence in its support. With this contention we can in no wise agree. In the first place we think that from the mere fall of a timber, the constituent *311 part of a standing building or structure provided as a place in wbicb employees are to work, there arises an entirely reasonable inference that the owner of that building, the employer, has failed in his duty either to make it safe in original construction or to exercise reasonable diligence and care to keep it safe. We can hardly conceive a clearer case for the application of the rule res ipsa loquitur. In addition to this, however, there was evidence of very inadequate original fastening of these heavy braces, so that the jury might well have reached the conclusion of unsafety in the original construction.

Appellant further urges, however, that a conclusion of negligent unsafety could not be reached by the jury upon inference from the mere happening of the accident, for the reason that it was proved that within a few days of the accident there had occurred, as a result of rain, the partial collapse of a certain slanting floor of a large pocket, which at least might have caused the loosening of the hrace which fell on plaintiff. It is enough to say with reference to this contention that there was considerable evidence introduced by the plaintiff from which the jury, in their field as judges of the fact, might have found that such collapse could not have had any effect upon the general superstructure of the dock or upon the brace in question, considerably remote from the pocket. Hence, although, as declared in Musbach v. Wis. C. Co. 108 Wis. 57 , 84 N. W. 36 , it may be only necessary to prove the reasonable possibility of some cause other than defendant’s negligence in order to avert the inference of negligence from the accident itself, it was entirely competent for the jury in this case to say that no such possibility had been proved.

It is further contended that any inference which might otherwise be drawn from the fall of this timber that it was insecurely fastened, or the defendant guilty of negligence in relation thereto, was excluded by proof of the exercise of due care in inspection of the dock by defendant’s foreman *312 the morning before the accident. Upon examination of such evidence, however, which consists of the testimony of the foreman himself and his assistant, we find them to assert an extremely cursory glance about the dock, such that it was by no means certain to inform him as to the existence of looseness or other defect in these timbers, and it was within the jury’s competency to consider and decide whether this did constitute such due care as might, under familiar rules, have overcome the inference of negligence. The inference of negligence which in a proper case may be drawn from the accident itself is one of fact, and the authority of the jury to decide whether it should be drawn can be excluded only in presence of undisputed proof, not merely testimony, that such negligence did not occur. Vorbrich v. Geuder & P. Mfg. Co. 96 Wis. 277, 285 , 71 N. W. 434 ; Groth v. Thomann, 110 Wis. 488, 495 , 86 N. W. 178 ; Klitzke v. Webb, 120 Wis. 254 , 97 N. W. 901 ; Montanye v. Northern E. Mfg. Co. 127 Wis. 22, 31 , 105 N. W. 1043 . Proof of inspection may be evidence in disproof of negligence, but. not necessarily conclusive disproof.2

In this connection appellant complains of an instruction in the following words:

' “If the fall of the brace is explained or accounted for by the evidence in such a way as to overcome the presumption that I have stated to you, then your answer to the second question must be ‘No,’ unless there is other and further evidence on the part of. the plaintiff which, together with the effect of that presumption, satisfies you that the explanation offered by the defendant to show that ordinary care and vigilance were exercised by its representative fails to show satisfactorily by the greater weight of all the evidence on the subject that such vigilance and care were in fact so exercised.”

It is extremely doubtful whether any exception to this instruction was not waived, by a stipulation that in consideration of the taking up of defendant’s motion for a new trial in the absence of exceptions he would confine himself to cer *313 tain specific ones not including an exception to this portion. However, as we think it does not embody any prejudicial error, we have decided not to allow any uncertainty to stand in the way of its consideration.

The first objection is to that portion which tells the jury that, if an explanation of the fall of the brace has been made such as to overcome the presumption of negligence arising from that fact, they may then consider all evidence on the subject, including the effect of the presumption. Counsel argues that, if the presumption has been overcome by defendant’s proof that it has exercised due care in certain respects, that presumption drops out of the case entirely, and that it was error to allow the jury to give it any further consideration. This view of appellant is based upon the idea that this so-called presumption is an artificial and conventional thing which either exists absolutely or is absolutely nonexistent. It is a little unfortunate that in some opinions the term “presumption” has been used instead of the word “inference.” There is in the conclusion drawn under the rule res ipsa loquitur nothing unnatural, artificial, or peculiar. Human experience and action continually involve inference of one fact from the known existence of another, and from every event like the fall of a brace such as this some inference must be drawn by every mind: certainly the inference that at the moment of its fall it was not sufficiently secure to prevent the fall under then existing circumstances. The fall of the timber is one of the thoroughly established facts, and the court was entirely right in authorizing the jury to take into consideration that fact and the necessary or natural inferences therefrom in connection with all other facts and evidence in reaching their conclusion whether or not it was due to defendant’s negligence.

Further, however, it is contended that in the last few-lines the instruction throws upon the defendant the burden of proof to negative its negligence; in other words, to show that due care and vigilance were exerted. If we can reason *314 ably believe that it may have been so -understood by the jury, doubtless error lurks therein. The burden of proof to satisfy the jury of the existence and proximate responsibility of negligence in the defendant at all times rests upon the plaintiff, and yet when the plaintiff has proved a situation which, unexplained, authorizes an inference or presumption of such negligence, and a specific fact is testified to on behalf of the defendant, of course, in the nature of things, the jury are not justified to believe in the existence of that specific defensive fact, unless satisfied by the preponderance of evidence. This is obvious; for, if no evidence at all had been offered of inspection, the jury would not have been justified in finding that such inspection had taken place. We think it plain from the context of this paragraph, with the preceding one that the words “such vigilance and care” refer, and must have been understood by the jury to refer, to what is previously described as ordinary care and vigilance to discover and repair the condition of the fastenings of the brace. The only thing in the evidence to which these phrases could apply was that of the foreman and his assistant, offered by defendant, that on the morning in question an inspection was made and no defects found calling for repair. If the jury understood merely that they were not justified in finding an adequate and complete inspection unless satisfied by the greater weight of the evidence that it had occurred, no error was committed. We think they could not reasonably have understood the language used otherwise; and, while the instruction quoted is unfortunate and not to be approved as a general rule of law, we think it not prejudicially erroneous here.

Certain assignments of error upon admission of evidence present no ground for reversal nor justification for their discussion in this opinion. We cannot agree with appellant’s contention that the damages are excessive.

By the Court. — Judgment affirmed.