Bruno v. Golden Bell Dairy

• Decision Date: 28 November 1961
• Citation: 15 Wis.2d 106,112 N.W.2d 199
• Parties: Rosina BRUNO, Appellant, v. GOLDEN BELL DAIRY, a Wisconsin corporation, Defendant-Respondent, American Surety Co. of New York, a corporation, Impleaded Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 199

112 N.W.2d 199

15 Wis.2d 106

Rosina BRUNO, Appellant, v. GOLDEN BELL DAIRY, a Wisconsin corporation, Defendant-Respondent American Surety Co. of New York, a corporation, Impleaded Defendant-Respondent.

Supreme Court of Wisconsin.

Nov. 28, 1961.

Action to recover damages for personal injuries sustained by the plaintiff as a result of falling down some steps in her own home.

The plaintiff and her husband lived in the lower floor of the dwelling and their son and his wife lived in the upper floor thereof. The defendant dairy delivered milk to each family. On January 1, 1959, sometime between 7:30 and 9:30 a. m., a driver for the dairy company delivered milk to both families. The night before there had been a heavy snow. The driver parked his milk truck on the street in front of plaintiff's home and walked about 25 feet to a door of the house. Upon entering the doorway there was a landing from which steps led to the basement and also upward six steps to the kitchen door of the lower apartment. Opposite the kitchen door was a second landing from which stairs led to the upper apartment. Milk for the second floor was placed upon one of those steps. The driver wore boots with his trousers over the boots. He tracked snow upon the stairs and landing. As he was leaving the plaintiff opened her door and wished him a Happy New Year. He returned the greeting and left. Plaintiff knew what the weather and snow conditions outside were at the time of the milk delivery. When the plaintiff exchanged greetings with the driver she noticed snow on his boots and that they were wet.

About five minutes after the driver left, the plaintiff started down the stairs to take some empty bottles to the basement. There were no handrails on either side of the stairway. The area was well lighted. Plaintiff was wearing house slippers with soles but no heels. Plaintiff fell on the second step below the landing leading to her apartment. She testified that she did not remember on what she fell but that after the fall she saw water on the steps where she fell.

The action was brought against the dairy company. On motion of the defendant the American Surety Company of New York was impleaded as a defendant. The surety company was liability insurer of the milk truck used at the time of the delivery and was made a defendant because of possible coverage under its policy. That matter was not determined by the court.

At the close of the testimony both defendants moved for a directed verdict dismissing the complaint on the ground that there had been produced no proof of any negligence on the part of the driver that would support such a finding by the jury. The motion was granted, and on November 9, 1960, judgment was entered dismissing the complaint against both defendants upon the merits, with costs. The plaintiff appealed.

Maurice Schmerling, Kenosha, N. Paley Phillips, Milwaukee, of counsel, for appellant.

Whaley & Whaley, Racine, for respondent Golden Bell Dairy.

Phillips & Richards, Kenosha, for respondent American Surety Co.

BROADFOOT, Justice.

The complaint alleged that the negligence of the driver consisted of failing to shake the snow from his boots before he entered the premises, thus allowing slush and snow to drip off his boots on the steps, making them slippery and unsafe; and that he failed to warn the plaintiff of the dangerous condition thereof.

In ruling upon the motion for a directed verdict it was the duty of the trial court to view the evidence in the light most favorable to the plaintiff. It was then its duty to apply the rule laid down by this court in the following language:

'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.' Rusch v. Sentinel-News Co. (1933), 212 Wis. 530, 533, 250 N.W. 405, 406; Thoni v. Bancroft Dairy Co. (1949), 255 Wis. 577, 579, 39 N.W.2d 690; Wadoz v. United Nat. Indemnity Co. (1957), 274 Wis. 383, 80 N.W.2d 262.

The trial court referred to the definition of negligence found in Osborne v. Montgomery (1931), 203 Wis. 223, 234 N.W. 372, and to the following quotation from ...