After all of the testimony had been presented Kelly moved for a directed verdict. In support of its contention that the motion should have been granted, Kelly claims there is no credible evidence to support a jury finding that Bartlein or Barbasiewicz plugged the openings in the coal water heater. Both employees testified that they did not insert the plugs. No witness testified he or she saw anyone insert the plugs. Therefore, Kelly contends, the positive testimony of the plumber and his helper stands unimpeached and the jury verdict is based upon conjecture.
Marcella Hadjenian, a daughter, was living with her parents at the time the new water heaters were installed and at the time of the explosion. She testified that she heard a hissing noise and saw steam coming out of the heater; that her father then exclaimed, "My God, Sears plugged the holes." Kelly contends this statement, if made by the deceased, was at best a res gestae statement setting forth only a conclusion and the jury's verdict cannot stand upon that alone.
From the evidence, especially in view of the conflicts, the jury could determine that the plugs were inserted by Bartlein or Barbasiewicz in spite of their positive testimony that they did not insert them. The exclamation by Hadjenian just before the explosion was evidence from which the jury could infer that Hadjenian himself had not inserted the plugs.
The trial court on motions after verdict determined there was credible evidence to support the findings of the jury as to the negligence of Bartlein or Barbasiewicz. We agree with its determination.
The jury has found the negligence of Kelly's employee was a substantial factor in causing the accident. Since the heater was not drained, the plugging of the outlets under the circumstances here was a direct cause of the explosion and the ensuing damages. Bartlein testified that he did not drain the water out of the old heater. The fact that the intervening acts of the deceased were negligent did not make them superseding causes of the explosion as they should reasonably have been anticipated by Kelly's employee who inserted the plugs. A discussion of the subject of intervening cause is contained in Brown v. Travelers Indemnity Co. 251 Wis. 188, 28 N.W.2d 306; Wenzel v. Werch, 256 Wis. 47, 39 N.W.2d 721; and Ryan v. Cameron, 270 Wis. 325, 71 N.W.2d 408.
It is further claimed that the contributory negligence of the deceased was greater as a matter of law than any negligence which could be attributed to the appellant's employees. The comparison of the negligence of the parties is peculiarly within the province of the jury and a study of the record shows that the jury acted within proper limits. Its determination of the question must be affirmed.
There was an appeal also from the judgment against Kelly in favor of Sears. The procedure was somewhat unusual but under the circumstances was not prejudicial so far as Kelly
By the Court. —Judgments affirmed.