Fitzgerald v. Badger State Mut. Cas. Co.

• Decision Date: 28 March 1975
• Docket Number: No. 441,441
• Citation: 67 Wis.2d 321,227 N.W.2d 444
• Parties: Lynette FITZGERALD, Plaintiff-Respondent, v. BADGER STATE MUTUAL CASUALTY CO. et al., Defendants-Respondents, Druml Co., Inc., a Wisconsin corporation, Defendant-Appellant, Chicago & N.W. Railway Co., Defendant. (1974).
• Court: Wisconsin Supreme Court

Page 444

227 N.W.2d 444

67 Wis.2d 321

Lynette FITZGERALD, Plaintiff-Respondent, v. BADGER STATE MUTUAL CASUALTY CO. et al., Defendants-Respondents Druml Co., Inc., a Wisconsin corporation, Defendant-Appellant Chicago & N.W. Railway Co., Defendant.

No. 441 (1974).

Supreme Court of Wisconsin.

March 28, 1975.

Hayes & Hayes, Milwaukee, for defendant-appellant.

Alan Shafrin, Milwaukee, for defendants-respondents.

Peregrine, Marcuvitz, Cameron, Peltin, Hersh & Lensky, S. C., Milwaukee, for plaintiff-respondent.

WILKIE, Chief Justice.

Two issues are raised in this lawsuit for damages to a guest, the plaintiff-respondent here, growing out of an automobile accident on December 26, 1969, when the car she was riding in, driven by defendant-respondent Virgil C. Csida, and insured by the defendant-respondent, Badger State Mutual Casualty Company, collided with a temporary railroad trestle (being used by the defendant, Chicago & Northwestern Railway Company) at a highway construction site at which work was being done by the defendant-appellant, Druml Company.

The defendant-appellant was under contract to the State of Wisconsin Highway Department to widen Silver Spring Drive in the city of Glendale in Milwaukee county and to rebuild the bridge supporting the tracks of the Chicago & Northwestern Railway Company at North 16th street. At this point the road narrowed from four lanes to two, allowing for one lane of traffic in each direction under the overpass. A temporary trestle consisting of a cluster of wood piles was erected by Druml to support the track during the construction. As the principal contractor, Druml was responsible for keeping the road open for traffic, maintaining the surface of the road, barricading the construction site, and lighting the area.

The first issue is whether there is credible evidence to support the finding of the jury that defendant Druml was negligent with respect to maintaining a place of employment as safe as the nature of the place would reasonably permit.

It is first necessary to explain how the accident happened. On December 26, 1969, at about 6:45 p.m., Lynette Fitzgerald and Virgil Csida were traveling in the west bound lane of Silver Spring Driver. At the time it was dark, a light snow was falling, and the road was wet and slippery. Both Csida and his passenger testified that there were no warning devices of any kind where the highway construction was taking place. Csida also testified that he was traveling at about 20 to 25 miles per hour, that he did not remember seeing the trestle, and that the car seemed to pull to the left just prior to the collision. His passenger testified that she felt the wheel on her side 'go down' into a ditch or hole. Csida had driven through the area before and had noticed there was construction work going on but had not noticed the extent of the work.

Druml introduced evidence to show that there were barricades and warning signs.

In a special verdict the jury found causal negligence on the part of the passenger, Csida and Druml. They apportioned this negligence as 5 percent to the plaintiff-passenger, 65 percent to Csida, and 30 percent to Druml. Total damages were assessed at $55,282.75. On motions after verdict, the trial court reduced the damages to $54,082.75 and affirmed the verdict in all other respects. It dismissed the action as against Chicago & Northwestern Railway.

The first major contention made by Druml on appeal is that there is insufficient credible evidence to support the jury finding of negligence on the part of Druml.

Before considering the sufficiency of evidence, it is first necessary to consider Druml's claim that it was prejudiced by the trial court's ruling against the admissibility of testimony regarding construction safety standards promulgated by the Federal Highway Commission, and evidence concerning compliance with such standards. We do not reach the question of admissibility because Druml did not lay a proper foundation for the introduction of such evidence. Druml did not make an offer of proof and the record even indicates an apparent abandonment of the line of questioning by Druml.

In this automobile accident case, the primary contention of the plaintiff was that Druml, as the construction contractor, violated sec. 62.15(11), Stats., which provides:

'(11) Street Obstruction. All contractors doing any work which shall in any manner obstruct the streets or sidewalks shall put up and maintain barriers and lights to prevent accidents, and be liable for all damages caused by failure so to do. All contracts shall contain a provision covering this liability, and also a provision making the contractor liable for all damages caused by the negligent digging up of streets, alleys or public grounds, or which may result from his carelessness in the prosecution of such work.'

The jury found in the affirmative as to the causal negligence of Druml and this finding was approved by the trial court which stated:

'. . . The jury apparently concluded, and I think we must recognize their right to do so, that Druml did not maintain these premises in the condition as reasonable as the nature of the premises would permit and that because of this the failure to maintain was a substantial factor in producing the accident.

'In order for the Court to change that answer from 'Yes' to 'No,' I would have to say that all of the testimony adduced by the plaintiff on the condition of this construction site as it relates to a failure of maintenance on Druml's part was inherently incredible and could in no way support a finding by the jury that it was causal. This we cannot do.'

The narrow question here becomes whether, viewing the evidence most favorably to the plaintiff-respondent Fitzgerald, there is any credible evidence in the record to support the finding that defendant-appellant Druml was negligent in failing to make the construction site as safe as the nature of the employment would reasonably permit. ¹

There was credible evidence for the jury to so conclude and to find that all three elements necessary to liability under the safe-place statute ²--the existence of a hazardous condition, that such condition caused the injury and that the employer knew or should have known of the condition--were present.

Defendant seeks to discredit plaintiff's and Csida's testimony by emphasizing discrepancies regading the number of drinks consumed by them on the day of the accident and the length of time spent at a friend's house and a tavern. Defendant claims that plaintiff's testimony concerning the absence of warning signs is incredible since she testified that there was a single lane for both east and west traffic traveling through the underpass. Respondent concedes that this testimony is inaccurate. But the credibility of witnesses and the weight to be given their testimony are to be determined by the jury. ³ Examining the testimony as a whole there is sufficient credible evidence here to support the conclusion that a hazardous condition existed at the construction site at the time of the accident.

Defendant also argues that the case of Skybrock v. Concrete Construction Co. ⁴ controls the issue of its negligence. In Skybrock the plaintiff was injured when she fell while crossing through an area where the defendant construction company was widening the street and installing a new curb and sidewalk. In reversing the jury apportionment of 75 percent negligence on the part of the defendant, this court stated 'Under the safe place statute, the defendant was to provide such freedom from danger to the safety of frequenters as the nature of the place of employment would reasonably permit. Defendant was not expected to guarantee the safety of persons who chose to cross the construction site. The nature of the place was a road construction project and naturally produced some dangers or hazards. That is why the road was closed to pedestrian and vehicular traffic. Defendant had no duty to put a red flag on every potential hazard that was present or to fence off the entire area. The defendant did provide a safe alternate route. The duty set by the safe place statute 'is not breached merely because the place could be made safer.' De Marco v. Braund (1966), 30 Wis.2d 675, 680, 681, 142 N.W.2d 165, 169.' ⁵

Defendant's reliance on Skybrock is misplaced. The central determination in that case was not whether there was any credible evidence to support the jury's conclusion that defendant was negligent. Rather the court held that plaintiff's negligence in failing to use an alternative route available to her was equal to or greater than the negligence of the defendant and that the defendant did not acquiesce in plaintiff's choice to walk through the area. The fact that in Skybrock the plaintiff resided in close proximity to the construction area and had full knowledge of it also serves to distinguish that case from the instant situation.

In spite of these differences defendant insists that Skybrock mandates reversal since plaintiff and Csida were aware that construction was going on in the area. This claim of knowledge is based on plaintiff's testimony that just prior to the accident she noticed the construction area as she looked out the side window and that she saw a 'yellow sign' immediately before the collision, and Csida's statement that he knew construction work was going on but not the extent of the work.

In another case dealing with sec. 62.15(11), Stats., this court held:

'Plaintiff's knowledge of the existence of the excavation and his attempt to cross it, however, does not as a matter of law preclude recovery if he did not realize or appreciate the danger and if it was not reasonable to expect that he would realize and appreciate the danger. The rule is stated in 63 C.J.S. Municipal Corporations § 850b, pp. 200, 201:

"A traveler is not precluded from recovery because he knew of the defect or obstruction, where his knowledge was remote,...