Carlson v. Drews of Hales Corners, Inc.

Decision Date03 November 1970
Docket NumberNo. 149,149
Citation48 Wis.2d 408,180 N.W.2d 546
PartiesEileen CARLSON et al., Appellants, v. DREWS OF HALES CORNERS, INC., a Wis. corporation, Respondent.
CourtWisconsin Supreme Court

This is an appeal from a judgment of the circuit court for Milwaukee county dismissing the plaintiffs' complaint after a jury verdict assessed the negligence of the plaintiff Eileen Carlson at 50 percent and that of the defendant at 50 percent.

The action arose out of a fall byn Eileen Carlson at Drews of Hales Corners, Inc., a retail establishment variously referred to in the record as a dime store or a department store.

Eileen Carlson stated that, while shopping, she asked for directions to the ladies washroom. She was directed to the basement by a clerk. She testified she was unable to locate the washroom. Apparently, she then abandoned her search for it. She said that, as she walked through an aisle, a drinking-glass display caught her eye. As she turned a corner into an aisle, her eyes were on the drinking-glass display. When she turned, she fell over a mop that was leaning against a display counter. The handle extended about six to eight inches into the aisle, and the mop itself extended one and one-half to two feet into the aisle. She testified that because of the defendant's negligence in leaving the mop in the aisle, she sustained personal injuries.

Defendant's witnesses admit that Eileen Carlson was in the store on August 4, 1965, and that she reported the fall. Defendant, however, contends that there was evidence that plaintiff was in a 'rush' to use the women's facilities,' and that the evidence did not show a mop at the location described by the plaintiff. An employee of the defendant testified that Eileen Carlson reported tripping over 'something' while leaving the washroom. There was testimony that a mop was located near the restroom facilities. The manager of the store testified that the merchandise was arranged in a manner that was designed to catch the eye of a prospective customer.

The jury found both Eileen Carlson and Drews store negligent and assessed 50 percent of the negligence to each. No loss of wages were awarded, but damages for personal injuries were awarded in the sum of $7,500. A stipulated sum was awarded as reimbursement for medical expenses. Harry Carlson, the spouse of Eileen and co-plaintiff, was denied any damages for 'lack (sic) of society and companionship.'

In motions after verdict, the plaintiffs enumerated 13 grounds for setting aside the jury's verdict or for a new trial on all issues. Plaintiffs' motions were denied, and judgment was entered dismissing the plaintiffs' complaint. The plaintiffs have appealed.

Warshafsky, Rotter & Tarnoff, Milwaukee, for appellants; Ted M. Warshafsky and Michael I. Tarnoff, Milwaukee, of counsel.

Kivett & Kasdorf, Milwaukee, for respondent; Kenton E. Kilmer, Milwaukee, of counsel.


On this appeal plaintiffs reiterate only a few of the grounds asserted in motions after verdict. They claim that the jury's assessment of 50 percent of the negligence to the plaintiff Eileen Carlson was grossly disproportionate in light of the evidence, and that the instructions were erroneous inasmuch as they omitted reference to the evidence tending to show plaintiff's attention had been diverted by a display of merchandise that was designed and calculated to divert a customer's attention. Additionally, they claim the instructions were erroneous because they included references to 'special circumstances,' such as weather and traffic conditions, when these factors were not present in the case. Plaintiffs also claim that the jury was improperly instructed in regard to 'loss of wages,' when the appropriate instruction should have referred to 'loss of earning capacity.' Plaintiffs also contend that the conduct of the trial judge in commenting on the evidence and in making disparaging remarks in respect to the conduct of plaintiffs' trial counsel was prejudicial.

The most crucial point, and the one that is determinative of this appeal, is the question of whether the jury instructions in regard to negligence were proper. If the court erroneously instructed the jury, we need not decide whether the findings of negligence and their apportionment based on such instructions are disproportionate to the evidence.

We conclude the instructions were erroneous.

Plaintiffs requested the standard suggested instructions as they appear in Wisconsin Jury Instructions--Civil, Part II, 1902, plus a sentence not appearing therein. The additional requested clause is italicized:

'However, a person is not bound absolutely by law to see every hazard or danger, if any exists, in her pathway, even should they be plainly observable, nor to remember the existence of every condition of which he had knowledge, especially when his attention is attracted by the display of merchandise in the store. A customer is only required to act as a reasonably prudent person would under the circumstances.' (Emphasis supplied.)

The trial judge gave the standard instruction minus the language requested by the plaintiffs. The trial judge also instructed the jury by using paragraph 4 of the Jury Instruction, which states:

'Ordinary care demands that such vigilance be increased where special circumstances exist. The degree of diligence with respect to keeping a proper lookout on the part of a person or customer or frequenter of a store as the plaintiff was in order to measure up to the standard of ordinary care which the law requires, varies with the time and place and the conditions which might normally be brought about because of weather or traffic in or out of the store, and the opportunity to observe these ahead and about her and all other circumstances then and there present.'

This latter paragraph was objected to by the plaintiffs. It was requested in a modified form by the defendant. The defendant requested instructions that included the requirement that vigilance be increased under 'special circumstances,' but its request omitted any reference to weather or traffic conditions. Apparently, 'special circumstances' as viewed by defendant involved a customer's use of the bathroom facilities and the likelihood that such an area would be used for storage.

The principal error we see in the instructions is the inclusion of the 'boiler plate' that appears in Wisconsin Jury Instructions--Civil, Part II, 1902. Mondl v. F. W. Woolworth Co. (1961), 12 Wis.2d 571, 107 N.W.2d 472, approved the 'special circumstance' instruction in a case where it had been snowing and there was evidence that the weather conditions contributed to the plaintiff's hazard. The same case, however, highlights the caveat that the pattern instruction is appropriate only where special weather or traffic conditions exist. If other 'special circumstances' are revealed by the evidence and are of any significance, such circumstances should be spelled out in the instructions and the 'boiler plate' discarded.

We conclude that it was error to include the factors of weather and traffic in the instructions when such factors were totally foreign to the evidence and completely extraneous to the facts at issue.

A trial judge has great leeway in framing instructions. There is no necessity that there be exact conformity to the suggested instructions even when such instructions would be completely appropriate. It is even more apparent that there should not be exact conformance to suggested instructions where the fact situation envisaged by the instructions is different from the facts at issue. The instruction must be germane to the situation at hand and must be framed in light of the evidentiary issues. We stated in Aetna Cas. & Sur. Co. v. Osborne-McMillan Elevator Co. (1967), 35 Wis.2d 517, 529, 151 N.W.2d 113, 118:

'A trial court must have and does have some leeway in the choice of language and emphasis in framing instructions which as a whole must not favor one side or the other but should set forth the respective versions of the evidence of the contestants.'

The 'special circumstance' instruction proposed by the defendant at least had the virtue of relating the circumstances to the facts of the case. The instruction given by the trial judge was inappropriate to the facts and prejudicial to the plaintiffs.

We also consider it error, under the circumstances, to have excluded language that would have presented to the jury the standard of reasonable care to be exercised by a frequenter where there was evidence that a merchandise display had diverted attention.

Plaintiffs' requested instruction said:

'A person is not...

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    ...1902. See also Steinhorst v. H.C. Prange Company, 48 Wis.2d 679, 680, 180 N.W.2d 525, 525 (1970); Carlson v. Drews of Hales Corners, Inc., 48 Wis.2d 408, 412-16, 180 N.W.2d 546, 548-50 (1970). 46. Preoccupation of a worker in the performance of his work minimizes or reduces the degree of ca......
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