Merton v. Michigan Central Railroad , 150 Wis. 540 ( 1912 )

Vinje, J.

It is claimed the trial court erred in changing the answer to question 2 from Yes to ETo, thus exonerating defendant from negligence in the construction and operation of the door. The evidence shows that it was made of mahogany; was twenty-two inches wide, six feet four inches high, about an inch and a quarter in thickness, and swung freely on the hinges. In other words, it was the kind of toilet-room door usually found in a Pullman or sleeping car. A door is one of the most' common appliances of civilized man, and its mode of operation is understood by everybody. The door in question was somewhat below medium width. In other respects it did not differ in its construction and operation from the great mass of doors in common use wherever a door is needed. It is claimed, however, it should have had a door check, so that it would have closed automatically. Perhaps such a door check would have prevented the accident in question. But we do not understand, and fail to find from the evidence, that it is the office or purpose of a door check to prevent accidents of this or a similar nature. A careful consideration of the probable effect of a pneumatic door check might lead to the conclusion that it would cause more accidents to fingers on the hinge side of the door jamb than it would prevent. But be that as it may, the fact remains that the door was constructed and operated substantially in the same manner that the great mass of such doors in all cars are constructed and operated, and that there was''nothing obviously dangerous in such construction and operation. Such being the case, defendant came within the rule'that a person who uses a customary appliance which is in good repair and not obviously dangerous, in a usual and .customary manner, is free from negligence. Guinard v. Knapp-Stout & Co. Co. 95 Wis. 482, 70 N. W. 671; Innes v. Milwaukee, 96 Wis. 170, 70 N. W. 1064; Prybilski v. Northwestern C. R. Co. 98 Wis. 413, 74 N. W. 117; Yazdzewski v. Barker, 131 Wis. 494, 111 N. W. 689; West v. Bayfield M. Co. 144 Wis. 106, 128 N. W. 992; Bandekow v. C., B. & Q. R. Co. 136 Wis. 341, 117 N. W. 812; Jensen v. Wis. Cent. R. Co. 145 Wis. 326, 128 N. W. 982; Willette v. Rhinelander P. Co. 145 Wis. 537, 130 N. W. 853; McGinnis v. Northern P. Mills, 147 Wis. 185, 190, 132 N. W. 897, 133 N. W. 22. This is in harmony with the rule requiring carriers of passengers to exercise the highest degree of care that men of reasonable vigilance and foresight ordinarily exercise in the practical conduct of ..such business under the same or similar circumstances, as reaffirmed in Ferguson v. Truax, 136 Wis. 637, 118 N. W. 251, for the evidence shows that ordinarily carriers of passengers do not equip toilet-room doors with door checks. Of course if it can be shown, as it was in the case of Creason v. St. L., I. M. & S. R. Co. 149 Mo. App. 223, 130 S. W. 445, relied upon by plaintiff, that the appliance is obviously dangerous, so that an ordinarily prudent man may reasonably anticipate that injury to another may probably follow as a result of its construction or mode of operation, then it falls within the exception stated in Jensen v. Wis. Cent. R. Co. 145 Wis. 326, 128 N. W. 982, and proof of custom of its use will not operate as a defense to the charge of negligence. In the Greason Case the door knob was placed so close to the edge of the door that it' could not be closed with the hand on the knob without the-hand striking the door casing. The object of a door knob is to enable the door to be opened and closed by the nse of the hand on the knob. Obviously, therefore, if the knob is so close to the door casing that a finger between the knob and casing will be crushed or pinched when the door is being closed it constitutes an appliance in itself obviously dangerous- — one from which injury is almost certain to result, as the hand must be placed on the knob in closing the door and usually cannot be withdrawn in time to avoid contact with the door casing if placed too near it. Not so in the case at bar. Ordinarily in using a door a person’s hand does not come in contact with, or near to, the door jamb to which the hinges are affixed. Only on account of some unusual occurrence or of some unforeseen combination of circumstances will it be placed there, and then the chance of its being caught as was plaintiff’s hand is slight. Hence we conclude the trial court' properly changed the answer to question number 2. This conclusion renders it unnecessary to decide the question of plaintiff’s contributory negligence, but we cannot forbear adding that we find nothing in the evidence to support the verdict on that subject.

By the Court. — Judgment affirmed.