Zartner v. George
Wisconsin Supreme Court
Appeal from a judgment of tbe circuit court for Milwaukee county: OiureN T. Williams, Circuit Judge. Action for personal injury. Tbe defendants, wbo were engaged in mason work in Milwaukee, shortly before they quit work on August 1, 1911, filled a mortar box with lime and water, oyer which they spread a covering of about two inches of sand, and left it in that condition uncovered and ■unguarded. It stood on a private lot near a building that was being erected.
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Appeal from a judgment of tbe circuit court for Milwaukee county: OiureN T. Williams, Circuit Judge. Action for personal injury. Tbe defendants, wbo were engaged in mason work in Milwaukee, shortly before they quit work on August 1, 1911, filled a mortar box with lime and water, oyer which they spread a covering of about two inches of sand, and left it in that condition uncovered and ■unguarded. It stood on a private lot near a building that was being erected. Plaintiff's testimony shows it stood from four to 'five feet back from the sidewalk, while that of the defendants is that it was from…
1Opinion of the CourtViNJE, J.
Was evidence of custom of leaving mortar boxes uncovered in Milwaukee properly received? In answering this question the distinction between proving a custom which is to affect or establish contract relations and a custom which affects, but does not necessarily determine, negligence, should be borne in mind. Pier v. C., M. & St. P. R. *133Co. 94 Wis. 357, 68 N. W. 464. When evidence as to custom is introduced for tbe purpose of characterizing an act as negligent because not performed in .the usual manner, or as non-negligent because so performed, a different rule prevails than when it is…
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