Bruss v. Milwaukee Sporting Goods Co.

• Decision Date: 09 May 1967
• Citation: 150 N.W.2d 337,34 Wis.2d 688
• Parties: Gerald BRUSS, a minor, by Eugene A. Kershek, his gdn. ad litem et al., Respondents, v. MILWAUKEE SPORTING GOODS CO., a Wisconsin corporation, Appellant. Thomas A. WHITE, Individually and as guardian of Michael White, a minor, Respondent, v. MILWAUKEE SPORTING GOODS CO., a Wisconsin corporation, Appellant.
• Court: Wisconsin Supreme Court

Page 337

150 N.W.2d 337

34 Wis.2d 688

Gerald BRUSS, a minor, by Eugene A. Kershek, his gdn. ad

litem et al., Respondents, v. MILWAUKEE SPORTING GOODS CO., a Wisconsin corporation, Appellant.

Thomas A. WHITE, Individually and as guardian of Michael

White, a minor, Respondent, v. MILWAUKEE SPORTING GOODS CO., a Wisconsin corporation, Appellant.

Supreme Court of Wisconsin.

May 9, 1967.

Wickham, Borgelt, Skogstad & Powell, Milwaukee, Reuben W. Peterson, Jr., and George N. Kotsonis, Milwaukee, of counsel, for appellant.

Richard L. Novotny, Milwaukee, Eugene A. Kershek, Milwaukee, of counsel, for respondents Bruss and others.

Burke & Schoetz, Milaukee, David J. Schoetz and Peter S. Balistreri, Milwaukee, of counsel, for respondent White.

HANSEN, Justice.

The issues raised in this appeal are as follows:

1. Is there any credible evidence which, under any reasonable view, admits of an inference supporting the jury verdict?

2. Did the defendant breach any duty to the plaintiffs?

3. Did the trial court err in:

a) refusing to admit the plaintiffs' original complaint, which alleged the same allegations of negligence against Narragansett as against the respondent?

b) refusing to submit a question asking whether Narragansett was negligent with respect to the manufacture and installation of the bleachers?

c) refusing to submit a question asking whether the school district was negligent in not providing a safe place?

Proof of Negligence and Causation

This court has recently stated the standard of review of a jury's findings in a negligence action in City of Cedarburg Light & W. Comm. v. Allis-Chalmers Mfg. Co. (1967), 33 Wis.2d 560, 563, 148 N.W.2d 13, 14:

'* * * Upon review in this court we are committed to the rule that the judgment must be upheld if there is any credible evidence which under any reasonable view admits of an inference supporting the verdict. * * *'

See also Cheetham v. Piggly Wiggly Madison Co. (1964), 24 Wis.2d 286, 128 N.W.2d 400.

There is sufficient credible evidence in the record to sustain the jury finding of negligence. On January 8 or 9, 1962, the defendant's employee, John Collins, inspected the bleachers and reported several defects as hereinbefore stated. Although the defendant had full knowledge of these defects, it did not repair them or cause them to be repaired, and did not notify the school district of possible danger involved.

The defendant takes the position that there was no positive proof that the defects still existed at the time of the accident on February 12. However, a letter from the president of defendant to Narragansett dated February 8th indicates that the defects in the bleachers continued to cause difficulty, and there was no proof that the defective conditions within the knowledge of the defendant had been eliminated by the date of the accident. Conditions once proved to exist are presumed to continue in the absence of evidence to the contrary. Racine County v. Ind. Comm. (1933), 210 Wis. 315, 246 N.W. 303; S. S. Kresge Co. v. Garrick Realty Co. (1932), 209 Wis. 305, 245 N.W. 118, 85 A.L.R. 283.

The defendant further challenges the jury's findings with respect to causation. Our court is committed to the 'substantial factor' test of determining proximate cause, Lee v. National League Baseball Club (1958), 4 Wis.2d 168, 175, 89 N.W.2d 811, and whether the defendant's conduct is a substantial factor is for the jury to determine unless the issue is so clear that reasonable men could not differ. Jeffers v. Peoria-Rockford Bus Co. (1957), 274 Wis. 594, 603, 80 N.W.2d 785; Weber v. Walters (1954), 268 Wis. 251, 67 N.W.2d 395; Prosser, Torts (3rd ed.), sec. 41, pp. 244, 246.

There is credible evidence from which the jury could determine that the defendant's negligence was a substantial factor in producing the result.

The row locks (sometimes referred to as butterfly catches) must be disengaged to close the bleachers. Collins noted in his report that some of the row locks in the balcony were bent and jamming and testified that what he meant by the term 'jamming' was that occasionally a row lock did not disengage when it was supposed to, in which event the closing process was slowed down or stopped. There is also testimony that the bleachers stopped as the plaintiffs were pushing to close them because of the jamming of the row locks. There is also evidence indicating that in the folding process, the bleachers were binding on the slotted pipe which fact is also contained in Collins' report. The jury could infer that the failure to repair or cause to be repaired the row locks or give notice of the possible danger of these defects to the school authorities was a substantial factor in producing the accident. Likewise, reasonable men could differ on whether the defendant's conduct was a substantial factor in producing the accident and the question is therefore a proper one for the jury.

It is also the position of the defendant that the plaintiffs were required to produce expert testimony on the issues of causation. In City of Cedarburg Light & W. Comm. v. Allis-Chalmers Mfg. Co. (1967), 33 Wis.2d 560, 148 N.W.2d 13, this court said that the lack of expert testimony on the question of causation results in an insufficiency of proof where the issue involves technical, scientific or medical matters which are beyond the common knowledge or experience of jurors and the jury could only speculate as to what inferences to draw. However, the review of evidence above makes it evident that the plaintiffs introduced ample proor from which a jury could infer that the defendant's negligence was a substantial factor in bringing about the accident, and the introduction of expert testimony was not necessary.

The defendant further states that a more probable cause of the accident was the failure to disengage the row locks by sufficiently pushing the rows from...