Anderson v. Joint School Dist. No. 3, Village of Luck

• Citation: 129 N.W.2d 545,24 Wis.2d 580
• Parties: Mildred ANDERSON et al., Appellants, v. JOINT SCHOOL DIST. #3, VILLAGE OF LUCK, etc., Respondent.
• Decision Date: 20 July 1964
• Court: United States State Supreme Court of Wisconsin

Page 545

129 N.W.2d 545

24 Wis.2d 580

Mildred ANDERSON et al., Appellants, v. JOINT SCHOOL DIST. #3, VILLAGE OF LUCK, etc., Respondent.

Supreme Court of Wisconsin.

July 20, 1964.

Rehearing Denied Sept. 11, 1964.

See 130 N.W.2d 105.

D. E. Jensen, Luck, for appellants.

Doar & Knowles, New Richmond, for respondent.

WILKIE, Justice.

The sole issue raised on this appeal is whether the trial judge was correct in ruling that, as a matter of law, the defendant school district did not violate the safe-place statute with reference to the glass view panels in the swinging door.

The jury found that the school district failed to meet the standard of care imposed on it by the safe-place statute to make the school premises, including this door, as safe, or free from danger, as their nature would reasonably permit. ¹ In directing a verdict for the defendant school district, notwithstanding the jury's conclusion, the trial court determined that there was no credible evidence to support the jury finding.

The general rule regarding directed verdicts was stated by this court in Smith v. Pabst ² as follows, at page 491, 288 N.W. at page 781:

"A verdict may properly be directed only when the evidence gives rise to no dispute as to the material issues or only when the evidence is so clear and convincing as reasonably to permit unbiased and impartial minds to come to but one conclusion." Citing Rusch v. Sentinel-News Co. (1933), 212 Wis. 530, 533, 250 N.W. 405.

More recently, we held in Schumacher v. Klabunde ³ as follows, at page 87, 119 N.W.2d at page 459:

"[I]n determining whether or not the trial court was in error in directing the verdict, this court must take that view of the evidence which is most favorable to the party against whom the verdict is directed.' Mueller v. O'Leary (1935), 216 Wis. 585, 587, 257 N.W. 161.'

Applying these rules to the instant case, we are satisfied that there was credible evidence to support the jury's determination of a violation of the safe-place statute by the school district. From the testimony of the man who installed the glass view panels, the jury could have concluded that the glass was ordinary window glass of the thickness of .118 inches. It was undisputed that Carol placed her right hand on the view panel, that she pushed to open the door exerting no extraordinary force, and that the glass broke, cutting her arm. Under the circumstances, a jury could infer that the glass was not thick enough or strong enough and that, accordingly, the school district has not provided a door that was as safe or free from danger as the nature of the premises, including the door, would reasonably permit.

Both parties rely on the recent case of Raim v. Ventura. ⁴ In that case, the plaintiff, a ten-year-old girl, during a rainstorm, either ran or walked rapidly toward a glass entrance door of a cheese market. Head down, she struck the glass door, which was a single panel of quarter-inch-plate glass, bordered with aluminum strips and a metal 'pull' bar. We affirmed a directed verdict on behalf of the defendant market owner, stating at page 71, 113 N.W.2d 829: 'Had the glass broken under more normal use thereof, such as by a slamming or by a person's being pushed or crowded into the door, a jury issue would have been presented.'

In the case at bar the use being made of the view panel when Carol pushed on it to open the door, was, in our view, a normal use that reasonably could have been anticipated by the school district. This fact is sufficient to distinguish the present case from Raim, and to raise a jury question on whether the school district violated the safe-place statute.

In Raim we stated, at page 71, 113 N.W.2d at page 829:

'Whether a structure falls short of the standard required under the safe-place statute is ordinarily a factual question to be resolved by the jury.'

Since such a factual question was presented here, and there was evidence to support the jury's finding, the trial judge's ruling that the school district did not violate the safe-place statute was erroneous and the verdict should be reinstated. ⁵

Judgment reversed and cause remanded for entry of judgment in favor of plaintiffs.

BEILFUSS, Justice (dissenting).

I respectfully dissent. The majority concludes the evidence is sufficient to raise a jury issue as to whether or not the door was as safe as the nature of the premises would reasonably permit. The trial court concluded that the plaintiff had not met her burden of proof in that the evidence was insufficient to establish a violation of the safe-place statute. I agree with the trial court.

Two significant quotations from recent decisions on the burden of proof and the scope of the safe-place statute follow:

'The plaintiff stresses the words 'absolute duty' on the part of the employer which have been frequently used in our decisions. From this language he contends that the employer is an insurer and that negligence is not an issue in a safe-place case. The safe-place statutes do not make an employer the insurer of the safety of a frequenter. Boutin v. Cardinal Theatre Co., 267 Wis. 199, 64 N.W.2d 848. The burden of proving all of the elements of liability under the safe-place statutes is upon the plaintiff in an action seeking recovery of damages for personal injuries. It has long been held that the safe-place statutes lay down a standard of care and if those to whom it applies violate the provisions thereof they are guilty of negligence. Holzworth v. State, 238 Wis. 63, 298 N.W. 163; Morrison v. Steinfort, 254 Wis. 89, 35 N.W.2d 335; Stellmacher v. Wisco Hardware Co., 259 Wis. 310, 48 N.W.2d 492. As in other negligence cases contributory negligence is a defense.' Paluch v. Baldwin Plywood & Veneer Co. (1957), 1 Wis.2d 427, 432, 433, 85 N.W.2d 373.

'The safe place statute (W.S.A. [sec.] 101.06) does not make an employer the...