Opinion
January 6, 1954 —
February 2, 1954.
APPEAL from a judgment of the circuit court for Milwaukee county: WILLIAM I. O'NEILL, Circuit Judge. Affirmed.
For the appellants there were briefs by Quarles, Spence Quarles, attorneys, and Edmund W. Powell and Kurt H. Frauen of counsel, all of Milwaukee, and oral argument by Mr. Frauen.
For the respondent there was a brief by Gerlach Porter of Milwaukee, and oral argument by Emery J. Porter.
In behalf of Gerald Grosso, a minor, this action was brought against the defendant for injuries Gerald sustained by reason of defendant's alleged negligence. Bernard Grosso, Gerald's father, joined as plaintiff to recover derivative damages. The jury returned a verdict in favor of the plaintiffs. The court entered judgment notwithstanding the verdict and dismissed the complaint. The plaintiffs appealed.
Gerald Grosso, aged fifteen years and nine months at the date of the accident, was a student in the public-school course in industrial arts. Defendant was his instructor and also had supervision and control of a small room, referred to as the oil room, in which paint, acids, inflammable liquids, and other materials were stored which were necessary to the course. A few days before the accident in question the defendant, assisted by Gerald and another pupil named Shong, cleaned the oil room and at that time defendant decided to get rid of an unmarked bottle of acid found there. He and the two boys took it to the basement to pour it on some ashes but they found the ashes had been removed so they brought the bottle back to wait until more ashes accumulated. Gerald testified he did not remember this. When they returned to the oil room defendant placed the bottle, which was then about three fourths full of acid, near the front of a shelf in the oil room. This shelf was 54 inches above the floor and was constructed of steel, three sixteenths of an inch thick and 14 inches wide, placed on angle irons one fourth of an inch thick, bolted to the wall on four brackets. It was not subject to any vibration. The bottle was about the size and shape of a quart Mason jar. The testimony varies as to just where defendant placed the acid bottle and it may have been as close as four inches to the front of the shelf or as far back as 12 inches. A day or two after the return of the bottle to the shelf the same two boys volunteered to scrape some wax off the floor of the oil room. The defendant permitted them to do so and, in the absence of the defendant, in some way Grosso knocked over the bottle of acid and was burned. When the bottle was inspected after the accident there was no cork in it. Grosso testified that when he first went into the oil room to scrape the wax from the floor he saw the acid bottle standing on the shelf.
The jury returned a special verdict which answered the questions material to the appeal as follows:
Question 1. At and immediately prior to the accident the defendant was negligent: (a) As to the manner in which he placed and maintained a bottle containing acid on a shelf in the oil room.
(b) He was not negligent as to warning Gerald Grosso that the bottle contained acid.
Question 2. The negligence determined by 1 (a) was a cause of the accident and the resulting damages.
Question 3. The plaintiff failed to exercise ordinary care for his own safety.
Question 4. Such failure was a cause of the accident and damages.
Question 5. The causal negligence was divided 55 per cent to the defendant and 45 per cent to plaintiff Gerald Grosso.
After verdict the trial court granted defendant's motion for judgment notwithstanding the verdict and entered judgment dismissing the complaint. The trial court filed a written decision stating as a matter of law that the defendant had warned Gerald and his companion, Shong, of the danger of the acid, and, in view of defendant's other duties he had exercised every reasonable care in the manner in which he placed and maintained the bottle upon the shelf. The trial court concluded that the defendant was not negligent and that on clear and positive testimony the boys had engaged in scuffling with other boys who were holding the door to the oil room and in some unexplained way knocked over the bottle. It held that such scuffling was an intervening cause of the accident.
This action is based on common-law negligence. A teacher in the public schools is liable for injury to the pupils in his charge caused by his negligence or failure to use reasonable care. 78 C.J.S., Schools and School Districts, p. 1197, sec. 238. The many cases collected in the annotation in 32 A.L.R. 2d 1181-1186, sufficiently demonstrate that the teacher is not immune to such responsibility in the absence of statute. Neither is he an insurer of the safety of the pupils in his charge.
The gist of the plaintiff's complaint is contained in par. 5 thereof, which reads as follows:
"Upon information and belief that at the time the defendant allowed the plaintiff Gerald Grosso and Thomas Shong to clean the oil room he knew that certain dangerous acids were stored in said room and that he also knew at the time he allowed the two boys to enter the oil room that he had a short time prior thereto placed an unlabeled, uncorked bottle on the shelf in said room near the front of said shelf and that he believed said bottle contained an acid or other dangerous liquid; that on January 24, 1949, the plaintiff Gerald Grosso was fifteen (15) years of age, and upon information and belief, Thomas Shong was fourteen (14) years of age; that despite the tender age of these two boys the defendant allowed them to enter the oil room containing the hazards just referred to alone and unsupervised and failed to warn them of the hazards present therein; that at the aforesaid time the plaintiff Gerald Grosso was unaware of the presence of the dangerous liquids within the oil room."
The elements of negligence alleged were the placing of an unlabeled, uncorked bottle of acid on the shelf and failing to warn the plaintiff of said hazards. The burden of proof, of course, was upon the plaintiff to establish the alleged claims of negligence. The jury found that the defendant was not negligent with respect to warning the plaintiff that the bottle contained acid. In other words, it found from credible evidence that the defendant did warn the plaintiff. That answer disposes of the question of labeling. All that the label upon the bottle could have done would have been to warn the plaintiff that it contained acid.
The sole question remaining was whether or not the defendant placed the bottle upon the shelf without a cork in it. To establish that element the plaintiff testified as follows:
Q. And did you notice whether there was a cork on that bottle? A. I don't think there was."
On cross-examination the plaintiff testified as follows:
" Q. It was a corked bottle? A. Yes, it is a cork bottle."
The Shong boy, plaintiff's witness, testified as to that matter as follows:
" Q. Do you remember whether the bottle that fell was uncorked or corked? A. I don't remember, or not for sure, but I imagine it was uncorked. I couldn't say for sure."
The defendant testified positively that there was a cork in the bottle at the time he placed it upon the shelf. There is evidence that the bottle was uncorked immediately after the accident.
In order to substantiate his claim of negligence that the defendant placed and maintained an open bottle of acid upon the shelf, it was the duty of the plaintiff to prove that the defendant did place an open bottle thereon, or that he knew or should have known that the cork had been removed. There is no such testimony. When and under what circumstances the removal took place, if it did, is completely speculative. We consider the learned trial court was right in holding as a matter of law that the plaintiff had not met his burden and proved negligence on the part of the defendant.
That conclusion makes it unnecessary for us to review the determination of the trial court that the accident resulted from a scuffle and that said scuffling was an intervening cause of the accident. The plaintiff failed to establish the allegations of his complaint and the same must be dismissed as the trial court directed.
By the Court. — Judgment affirmed.
The evidence was conflicting as to whether the defendant teacher warned the plaintiff and his companion, Shong, of the danger present in the oil room due to the storage of acid at the time the defendant permitted them to enter such room to clean up the wax on the floor. However, the jury, by their answer to question 1 (b) of the special verdict, resolved this conflict in favor of the defendant, so on this appeal we must accept as a verity the fact that the two boys were so warned of the danger. In spite of such warning, in some unexplained manner, the acid bottle was upset spilling the acid upon plaintiff.
The plaintiff was not a child of tender years, but at the time of the accident he was fifteen years nine months of age. Furthermore, the testimony discloses that he was a boy of intelligence and in no way mentally retarded. Plaintiff was unable to give any explanation of how the accident happened, except that he, and not Shong, was the one who knocked over the bottle of acid. There is no possibility that such knocking over of the bottle could have happened except through some act of carelessness on the plaintiff's part in direct disregard of the warning given by the defendant teacher. Such negligence on the part of the plaintiff should be held, as a matter of law, to have been at least as great, if not greater, than that of the defendant teacher.
In Wear v. Northern States Power Co. (1952), 262 Wis. 9, 53 N.W.2d 777, this court approved of a determination made by the trial court, that the negligence of the plaintiff's intestate who placed himself in a position of danger in disregard of the express warning of his fellow employees and sustained injury as a result of such exposure to danger, must be held to have been at least as great as the negligence of the defendant power company. Such holding would seem to be controlling in the instant case so as to bar plaintiff from recovery, even though the negligence of defendant might possibly have presented a jury issue.
I am authorized to state that Mr. Justice STEINLE joins in this concurring opinion.
I consider the testimony raised questions of negligence which should be answered by the jury rather than the court. Accordingly, I believe judgment should have been entered on the verdict.