Du Bois v. De Bauche

• Decision Date: 03 June 1952
• Citation: 262 Wis. 32,53 N.W.2d 628
• Parties: DU BOIS, v. DE BAUCHE et al.
• Court: Wisconsin Supreme Court

Page 628

53 N.W.2d 628

262 Wis. 32

DU BOIS, v. DE BAUCHE et al.

Supreme Court of Wisconsin.

June 3, 1952.

Upon motions after verdict the trial court changed the answer to the second question from 'Yes' to 'No,' and struck from the verdict the answers to the third and fourth questions. Judgment was entered on December 7, 1951, dismissing plaintiff's complaint, and the plaintiff appeals from said judgment.

Cohen, Parins & Cherney, Green Bay, for appellant.

Kaftan, Kaftan & Kaftan, Green Bay, for respondents.

BROADFOOT, Justice.

The plaintiff contends that there was sufficient credible evidence to support the answers of the jury to the questions in the special verdict. He calls attention to the fact that the trial court did not change the answer to the first question and therefore it is a verity in this case that the plaintiff was hit by a falling bowling ball. He states that the sequence of events, the movement of the ladder, the exclamation of the plaintiff, the sound of the ball falling on the floor and the actual presence of a ball on the floor, all occurring at approximately the same time, admit of an inference that there was a ball on or near the ladder, in or out of the bowling bag, and that the act of Salatte in raising the ladder precipitated the fall of the bowling ball. The trial court, in its memorandum decision, answered this contention as follows:

'Salatte saw no ball on the locker that he could recall. In answer to the question whether he was in a position where he could have seen a ball if there were a ball on top of the ladder, he said, 'Well, things had to be done in such a hurry that I'd say offhand if there was a ball there and staring directly at me and I was staring directly at the ball, I would have seen it.' After the accident he saw an unidentified brown bowling bag on top of the locker ahead of Du Bois. The ladder just about completely covered the locker so that no ball could rest between it and the near edge of the locker. If there were a ball on top of the locker, it would have to be resting on the ladder.

'No one testified that on the night in question or at any other time he ever saw a bowling ball on top of the lockers, at this particular place or at any other place in the locker room. Salatte testified that the orders from his employer were that nothing was ever to be stored on top of the lockers except flat things, such as papers and boxes, and that anything placed up there had to be flat. Occasionally bowlers would put their shoes or bowling bags on top of the tiers of lockers. The orders to Salatte were that no bowling balls or anything that was going to fall were to be put on top of the lockers. So far as the evidence shows, the orders were obeyed.

'To get the ladder down Salatte testified that he had to reach over his head. This indicates that he could not see the top of the lockers but would not indicate that he could not have seen a ball lying thereon. Salatte further testified that he had to push the ladder up first perhaps a half inch and had not started to pull it towards him when the accident occurred. Obviously, he could not with one hand do more lift the near leg of the ladder to get it higher than the ridge so as to permit it to be slid off, and in raising the near leg, or side, the ladder would be tilted backward, not forward. There is accordingly nothing in the testimony of Salatte as to his movement of the ladder that would cause a ball, if there were one on the ladder, to roll forward toward the face of the lockers. Salatte's testimony on this point is clear:

"Q. And this happened simultaneously with your moving the ladder? A. That's right.

"Q. You actually had to push the ladder up first, is that right? A. Maybe a half inch.

"Q. And then you started pulling it toward you? A. I didn't have a chance to pull it towards me.

"Q. You just started to lift it up, is that right? A. I just started to lift it up.'

'Both the plaintiff and Salatte testified that there were a lot of bowlers in the locker room. The evidence permits of no other conclusion than that several of the bowlers in the locker room at the time were in possession of their own private balls. No unreal assumption is involved when it is stated that bowling balls sometimes drop from the hand or arm of a bowler. If a bowler carrying his ball in the crook of his arm was passing in the rear of plaintiff and the ball fell, it would have been the one that struck the plaintiff.

'It seems to me that the case presents a situation where the crucial question: Where did the bowling ball come from? lies in the field of conjecture. Furthermore, the possibilities pointing to someone other than the defendants as the responsible party are at least as great as those which point to the defendants. There is nothing in the case that warrants rejection of Salatte's testimony, and, as indicated above, his disturbance of the ladder was such as would cause a ball to move to the rear rather than forward if there were one on the ladder. And, if there were one on the ladder, it would be in all probability securely seated in...