Opinion
March 6, 1952 —
April 8, 1952.
APPEAL from a judgment of the circuit court for Waupaca county: HERBERT A. BUNDE, Circuit Judge. Affirmed.
For the appellant there were briefs by Eberlein Eberlein of Shawano, and oral argument by Frederic C. Eberlein.
For the respondents there was a brief by Fisher, Reinholdt Peickert of Stevens Point, and oral argument by William E. Fisher.
George Palmer began an action for damages on October 3, 1949, against Henry Disston Sons, Inc., a foreign corporation, and David Durand, defendants. Judgment was in favor of the defendants, and plaintiff appeals.
The plaintiff had purchased a power saw from the defendant corporation. Durand was their representative. The plaintiff was an experienced woodsman but had no previous experience in the operation of this character of saw. He made his purchase through a dealer in Appleton by the name of Weber. There was an agreement that in event of difficulty the seller would instruct the buyer. Durand, the state representative of the corporation, at the request of Weber, went with him to the Palmer farm for the purpose of instructing Palmer in the operation of the saw.
Before the incident on which the plaintiff bases his cause of action occurred, Durand had taken charge of the felling of a tree, saying to the plaintiff, in effect, "You are not handling the saw right. Let me show you how to do it." The plaintiff and Mr. Weber then retired to a place of safety some thirty feet or more away. Durand proceeded with the operation, which consisted of completing the cutting of a notch in the tree at the place indicated by Palmer. Having completed the cutting of the notch, Durand moved to the other side of the tree to make the final cutting. After he had sawed into the tree to a depth of about six inches without removing the block, the plaintiff noticed that the tree seemed to settle and pinch the saw blade. The plaintiff and Weber, both believing that the tree was going to fall in a direction different from that which was desired by the plaintiff, ran to the tree and began pushing on it in an effort to direct its fall.
The case was tried to the court and jury. At the close of the testimony the defendants moved the court for a directed verdict in favor of the defendants because of a failure of proof of any cause of action and because there was no causal negligence shown on the part of the defendants. There were other grounds stated, among them the ground that plaintiff's negligence was the negligence and sole cause of the injuries for which he complains. The motion was temporarily disposed of by the court, which said: "The court is going to reserve ruling on those motions." The matter was submitted to the jury, and the jury determined in a special verdict that the defendant, David Durand, was negligent in respect to sawing into the tree in question in the manner in which he did, but that the injury to the plaintiff was not a natural consequence of the negligence of Durand; that the plaintiff George Palmer was negligent in making the first cut with the saw for the purpose of notching the tree and also in running to the tree and attempting to alter its direction of fall by pushing; that the plaintiff assumed the risk of his act. Upon a comparison of negligence, the jury determined that twenty-five per cent should be assessed against the defendant, Durand, and seventy-five per cent against the plaintiff, George Palmer. In the appeal, the plaintiff calls attention to an erroneous instruction given with relation to question No. 3 in the special verdict, which question reads as follows:
"Was the injury to the plaintiff, George Palmer, the natural cause of the negligence of the defendant, David Durand, in sawing into the tree in the manner in which he did?"
On motions after verdict, the trial court said:
"At the close of the testimony attorneys for the defendants made the following motion: `For the court to find as a matter of law that the negligence, if any, of the plaintiff, George Palmer, was equal to or greater than the negligence, if any, of the defendant, David Durand;'"
and at a further point in the order observed that —
"The court is, however, aware that error was committed in instructing the jury on the burden of proof as to question 3 of the special verdict, and ordinarily would have been inclined to have seriously considered plaintiff's motion for a new trial. However, the verdict is sufficiently informative to lead the court to believe that under the law and the facts as found by the jury there can be but one conclusion and that is that the defendants should prevail in the action," and he ordered a dismissal of the complaint.
We are convinced that the trial court reached the correct result. If the question presented were other than one of law, a new trial might properly have been granted. However, the plaintiff was injured when a tree, on which he was pushing in an effort to control the direction of its fall, fell and bounced or rolled, and a branch struck his leg; and it appears from the statement of facts that, after the defendant had taken charge of the operation of felling the tree, plaintiff assumed the responsibility of a volunteer or rescuer, either in his own interest, to save the saw, or to assist the defendants. Under the facts which constitute the premises on which the action is based there is nothing to create a duty on the part of defendants arising out of any then existing relation out of which any liability for the injuries was visited upon the defendants. We are impelled to reach this conclusion because of the rules of law applicable to one placing himself in the situation in which the plaintiff placed himself.
When plaintiff left his place of safety and undertook to direct the fall of the tree, a new situation was created by him, independent of what may have preceded and independent any act of the defendants. A person who engages himself in an effort to help remedy an existing condition ordinarily takes things as he finds them. It is his duty to exercise reasonable care. Plaintiff was an experienced woodsman. He knew what the situation was. He was fully aware that when a tree is felled there may be a bouncing or rolling. He does assert that the defendant should have warned him not to approach the tree. But as a volunteer he can claim no duty or obligation resting on the defendants to insure his safety.
As he acted for the purpose of causing the tree to fall in a manner that would make it easier "to skid it out after it fell," he was acting to further his own interests. In the case of Nemeth v. Farmers Co-operative Elevator Co. 252 Wis. 290, 294, 31 N.W.2d 569, which was an action for injuries sustained by the plaintiff while she was setting a block under the wheel of a truck from which defendant's truck driver was delivering coal to plaintiff's home, it was said: "Under the facts as stated, we think it clear that the appellant was engaged in furthering her own interests and that her activities were for the purpose of getting delivery the coal and not to accommodate the coal company."
Upon the argument, plaintiff referred to a class of cases, among which we assume that he meant to call attention to the cases of Brown v. Travelers Indemnity Co. 251 Wis. 188, 28 N.W.2d 306, and Hatch v. Smail, 249 Wis. 183, 23 N.W.2d 460. It is considered, however, that neither the cases cited in their brief nor those suggested on argument are with relation to situations similar enough to be treated as precedents controlling the case at bar. It is true, of course, that an act or omission of an act may be the foundation of a cause of action at law, but only when it appears that a duty was owing to the injured person by the actor claimed to have been negligent. There are combinations of circumstances which so closely connect the incidents of subject matter to be considered as to comprehend them in a "proximate-cause" relationship to each other, because they spring out of and are strictly contemporaneous with the principal fact claimed to be the basis of a cause of action. That rule is recognized in such cases as plaintiff referred to. However, when remoteness of an antecedent act is substantial and therefore sufficient to separate it from a later incident, the doctrine of those cases does not apply. That is so because the question then is controlled by the facts which make up the circumstances of the last occurrence. When the facts do not constitute a continuous succession of events so linked together as to make a natural whole, our consideration then centers upon the act or behavior of the plaintiff. Spence v. American Oil Co. 171 Va. 62, 197 S.E. 468, 118 A.L.R. 1120.
Plaintiff gratuitously entered into his effort under circumstances which placed upon himself the duty to exercise reasonable care, competence, and skill. Kramer v. Chicago, M., St. P. P. R. Co. 226 Wis. 118, 276 N.W. 113; Nelson v. Chicago, M., St. P. P. R. Co. 252 Wis. 585, 32 N.W.2d 340. It became his problem. It must be conceded that the defendant Durand did nothing in the interval between the time when plaintiff retired to a place of safety and the time when he was injured that amounted to a negligent act or the omission of an act constituting negligence. It follows that no cause of action exists against defendants, and the trial court correctly determined that a motion for a directed verdict should be granted.
By the Court. — Judgment affirmed.