Burling v. Schroeder Hotel Co.

• Decision Date: 07 May 1940
• Citation: 291 N.W. 810,235 Wis. 403
• Parties: BURLING v. SCHROEDER HOTEL CO.
• Court: Wisconsin Supreme Court

235 Wis. 403

291 N.W. 810

BURLING

v.SCHROEDER HOTEL CO.

Supreme Court of Wisconsin.

May 7, 1940.

Appeal from a judgment of the Circuit Court for Milwaukee County; Charles L. Aarons, Judge.

Reversed.

Action brought by H. R. Burling against Schroeder Hotel Company to recover damages for injuries sustained by plaintiff as the alleged result of an unsafe condition in a stairway on defendant's premises. On the trial issues of fact were submitted to the jury for a special verdict, and upon motions after verdict the court changed one of the jury's findings and ordered judgment dismissing the action. Plaintiff appealed from the judgment.Affeldt & Lichtsinn, of Milwaukee (Suel O. Arnold, of Milwaukee, of counsel), for appellant.

Shaw, Muskat & Paulsen, of Milwaukee (Van B. Wake, of Milwaukee, of counsel), for respondent.

FRITZ, Justice.

The plaintiff, H. R. Burling, appeals from a judgment dismissing his action to recover damages from the defendant, Schroeder Hotel Company, for personal injury sustained upon his falling down a stairway in the defendant's hotel. The stairway extended northward from the floor of the lobby to a dining room seven feet above the lobby floor. Commencing at the lobby floor the stairway was nineteen feet wide and there were three risers totaling nineteen and one-half inches to a landing, the north and south width of which was eleven feet. Above it there were three risers to the second landing, four feet wide from north to south, and there was a check room at the west end of this landing. Above that there were seven risers to the dining room floor level, and the upper portion of the stairway was sixteen feet wide, excepting that at the highest riser the width was reduced to fourteen feet five inches. The treads on the risers above the lowest landing were fine-grained, hard Tennessee marble, capable of high polish. There was no center hand rail, but there were short sections of hand rails at the walls on the east and west sides of the stairway for each portion of the stairway that was of the same width. Plaintiff, with a party of eight others, had entered the lobby to go up the stairway to the dining room as guests. Some preceded and others followed plaintiff, who stopped at the check room at the west end of the second landing. Then he walked diagonally upward toward the center of the stairway. When both feet were on the first tread below the dining room floor he stopped and turned partially to his right (i. e., to the south and east) to see if his party was together. As he turned and was practically half turned, facing east or a little southeast, his right foot slipped sideways and a little toward his rear and off the tread, and he commenced to fall. He tried to catch his footing and balance but was unable to do so, and stumbled down the stairway and fell to the lobby floor, with the result that his right elbow was seriously fractured.

The jury found, in answer to questions submitted for a special verdict, that the absence of a center hand rail rendered the stairway unsafe for persons walking up in the usual and customary manner, and such absence was an efficient cause of plaintiff's falling down the stairway; that the surface of the edges of the treads was not in such a condition as to render the stairway unsafe for persons walking up on it in the usual and customary manner; and that plaintiff was not negligent in respect to the manner in which he walked up the stairway, but was negligent “in respect to his duty to observe the position of his feet immediately prior to his fall”, and such negligencecontributed to his fall and was twenty per cent. of the total negligence which caused his injury. On motions after verdict the court filed a written decision holding that there was ample evidence to support the jury's finding that the absence of a center hand rail rendered the stairway “unsafe for persons walking up on it in the usual and customary manner”, and the instructions to the jury and the written decision disclose that the court considered the safe place statutes, secs. 101.06 and 101.01(11), applicable to the stairway. The court concluded, however, that the absence of a center hand rail was not an efficient cause of plaintiff's falling down the stairway, and therefore substituted its finding to that effect in place of the jury's affirmative finding to the contrary. The court based its finding in this respect upon its conclusion that the “testimony leaves it entirely to speculation as to whether plaintiff was in such position that he could have seized hold of a center rail had there been one.”

[1]On this appeal plaintiff contends that the court erred in setting aside the jury's answer and substituting therefor the court's finding that the absence of a center hand rail was not a cause of plaintiff's fall, and thereupon entering judgment dismissing the action. In passing upon plaintiff's contention, there is applicable the rule that, “If there was any credible evidence which reasonably admitted of inferences sufficient to sustain the jury's finding then what were the proper inferences to be drawn was for the jury, and its findings could not be discarded by the court, although a new trial could have been granted on that ground in the exercise of the court's discretion in the interests of justice.” Webster v. Krembs, 230 Wis. 252, 256, 282 N.W. 564, 566.

A review of the record discloses that there was evidence because of which the jury could believe that the plaintiff was within two...