Cheetham v. Piggly Wiggly Madison Co.

• Decision Date: 02 June 1964
• Citation: 24 Wis.2d 286,128 N.W.2d 400
• Parties: Robert CHEETHAM et al., Appellants, v. PIGGLY WIGGLY MADISON CO., a Wis. corporation, Respondent.
• Court: Wisconsin Supreme Court

Page 400

128 N.W.2d 400

24 Wis.2d 286

Robert CHEETHAM et al., Appellants, v. PIGGLY WIGGLY MADISON CO., a Wis. corporation, Respondent.

Supreme Court of Wisconsin.

June 2, 1964.

Walstead, Anderson, Bylsma & Eisenberg, Madison, for appellants.

Rieser, Stafford, Rosenbaum & Rieser, John A. Hansen, Madison, for respondent.

BEILFUSS, Justice.

On this appeal the plaintiff challenges the instruction given the jury concerning her contributory negligence and asks us to find her free of contributory negligence as a matter of law.

The Instruction ¹

The plaintiff complains of that portion of the instruction set out in the margin which informs the jury that it was plaintiff's 'duty to guard against any injury to herself so far as by reasonable care she could protect herself.' Plaintiff contends that the following sentence should have been substituted:

'If you find that Marion Cheetham did observe any dangers open and obvious to her then the test to be applied is whether a reasonably prudent person would, under the circumstances, use such place for walking.'

The thrust of plaintiff's argument is that the use of the word 'guard' was improper because the word connotes a higher standard of care than the law required of her. Portions of most instructions taken out of context are subject to the same objection. The import of the instruction viewed as a whole is that plaintiff had a duty to use ordinary care for her own safety. Willenkamp v. Keeshin Transport System, Inc. (1964), 23 Wis.2d 523, 127 N.W.2d 804.

Plaintiff's Contributory Negligence

In order for her attack on the jury's verdict to be successful, plaintiff must overcome a substantial hurdle. When a jury verdict is attacked we inquire only whether there is any credible evidence that, under any reasonable view, supports the verdict. This is especially so when the verdict has the trial court's approval. Olson v. Milwaukee Automobile Ins. Co. (1954), 266 Wis. 106, 62 N.W.2d 549, 63 N.W.2d 740; Hibner v. Lindauer (1963), 18 Wis.2d 451, 118 N.W.2d 873.

Here plaintiff and her husband walked from their car to the store without incident. Plaintiff's husband returned safely even though he had a bag of groceries under his arm. Thus the parking lot was not so slippery that it could not be traversed with safety in the exercise of ordinary care. This evidence will sustain a jury verdict of failure to exercise reasonable care for one's own safety. Filipiak v. Plombon (1962), 15 Wis.2d 484, 113 N.W.2d 365; Mustas v. Inland Construction, Inc. (1963), 19 Wis.2d 194, 120 N.W.2d 95, 121 N.W.2d 274.

Plaintiff cites Paepcke v. Sears, Roebuck & Co. (1953), 263 Wis. 290, 57 N.W.2d 352; Schwenn v. Loraine Hotel Co. (1961), 14 Wis.2d 601, 111 N.W.2d 495; and Zernia v. Capitol Court Corp. (1963), 21 Wis.2d 164, 124 N.W.2d 86, 125 N.W.2d 705, in support of her argument that we should find her free of contributory negligence as a matter of law. A careful reading of those cases will disclose that in none of them was a plaintiff held free of contributory negligence as a matter of law.

In the Paepcke Case the jury had returned a verdict finding plaintiff free of contributory negligence. We refused to find the plaintiff guilty of contributory negligence as a matter of law.

In the Schwenn Case all parties were found negligent and we refused to disturb the apportionment, while reversing on the ground that the negligence of the two defendants in that case should not have been combined for purposes of comparison with that of the plaintiff.

In the Zernia Case the jury found the plaintiff free of contributory negligence but also found that the defendant did not violate the safe-place statute. The plaintiff's contributory negligence was not involved on appeal. Rather than...