Gorr v. Mittelstaedt

• Decision Date: 21 May 1897
• Citation: Gorr v. Mittelstaedt, 96 Wis. 296, 71 N.W. 656 (Wis. 1897)
• Parties: GORR v. MITTELSTAEDT.
• Court: Wisconsin Supreme Court

96 Wis. 296

71 N.W. 656

GORR

v.MITTELSTAEDT.

Supreme Court of Wisconsin.

May 21, 1897.

Appeal from circuit court, Winnebago county; George W. Burnell, Judge.

Suit by Hulda Gorr against Edward Mittelstaedt for damages.From a judgment for plaintiff, defendant appeals.Reversed.

The defendant owned three lots on the west side of Main street, in the city of Oshkosh.On the south side of the lots was an open cellar 45 feet wide towards the street line, and extending west 65 feet.North of the cellar some distance, and back from the street, was a dwelling house.Back of the cellar was an office used by the defendant, and still further back was a large barn.On the side of the excavation towards the north there was no barrier, except that the wall extended above the surface of the ground about one foot.The house was occupied by a tenant by the name of Menz, with his family.From the street, north of and parallel with the cellar, and 20 to 26 feet from it, was a private driveway extending back to the barn.Such driveway was about 12 feet wide, and was used in going from the street to the house; also to the office and barn on the premises.Such way was for the use of all persons desiring to call at the office or to visit the Menz family.It was frequently used by the plaintiff before the accident, by invitation of the Menz family.On the day of the accident there was a funeral at the house.Crape was hanging on the door.Plaintiff, pursuant to an invitation, express or implied, in a carriage drawn by one horse, drove up such private way to a point near the house, and was about to alight, when the horse became frightened, presumably by the crape on the door, causing him to back up, turn the buggy towards the cellar, and to continue to back till the vehicle, its occupants, and the horse, were precipitated into the excavation.The horse was so injured as to be worthless, the buggy was considerably damaged. and the plaintiff suffered some personal injuries.She brought this action to recover compensation therefor.At the close of the evidence defendant's counsel moved for a nonsuit, which was refused.A special verdict was rendered to the effect that defendant was guilty of negligence which was the proximate cause of the injury; that plaintiff, when injured, was on the premises by invitation, was free from contributory negligence, and that her damages were $200.Defendant's counsel moved the court to set aside the verdict, and for a new trial, which was denied.Both sides then moved for judgment.Defendant's motion was denied, and plaintiff's granted.Judgment was thereupon entered in plaintiff's favor, from which this appeal was taken.James Freeman, for appellant.

F. W. Houghton, for respondent.

MARSHALL, J.(after stating the facts).

The jury having found as a fact that plaintiff was using the private driveway, at the time of the accident, by invitation, the rule that where a licensee is injured by falling into an excavation on the land of another, over which he is passing by mere permission of such other, does not apply.Actionable negligence springs from a violation of some positive duty which the person charged therewith owes to the injured person.In case of a mere permission by one for another to use his premises, no duty to guard the latter from danger of personal injury exists.Such permission only gives a right to enjoy the premises for such use as the licensee finds them.Cahill v. Layton, 57 Wis. 600, 16 N. W. 1;Truax v. Railway Co., 83 Wis. 547, 53 N. W. 842;Dowd v. Railway Co., 84 Wis. 105, 54 N. W. 24;Peake v. Buell, 90 Wis. 508, 63 N. W. 1053.But where the owner of land invites another expressly or by implication to come upon his land, as by passing over a private way thereon, a different rule applies.He owes to such other the positive duty to use ordinary care to maintain such way in a reasonably safe condition for such use by persons in the exercise of ordinary care.Says the present chief justice, in Peake v. Buell, supra, quoting with approval from the opinion in the leading case of Beck v. Carter, 68 N. Y. 283: “ ‘Where the owner of land, expressly or by implication, invites others to come upon his land, if he permits anything in the nature of a snare to exist thereon, which results in injury to one availing himself of the invitation, and who at the time is exercising ordinary care, such owner is answerable for the consequences.’ ”“But,” continues the learned judge who delivered the opinion in Beck v. Carter, “if, however, he gives but a bare license or permission to cross his premises, the licensee takes his risk of accident in using the premises in the condition in which they are.”Under the facts of this casethe defendant could not, consistent with the duty he owed to plaintiff, leave a dangerous excavation unguarded in such close proximity to the private driveway as to render it unsafe for persons to use, in the exercise of ordinary care, without being responsible for injuries happening to such persons so using the same, by reason of such neglect.

It is claimed on the part of appellant that the driveway was so far removed from the side of the open cellar that the trial court should have directed a verdict in defendant's favor upon the ground that, as a matter of law, the distance was too great to admit of a finding that it was in such close proximity to the driveway as to render it unsafe.Ordinarily, whether a way is so rendered unsafe is a question for the jury, but the distance of the dangerous place from the course of travel, and the limits of the premises designed therefor, may be such that different minds can come to no other conclusion than that the condition of reasonable safety which the law requires is not affected thereby.Then there is no question for a jury, and the court should direct a verdict for defendant on being requested so to do.Obviously it is very difficult to say how far removed an excavation must be from a traveled way in order that it may conclusively appear not to be sufficiently close to render the way dangerous, and the facts of each case must, necessarily, largely govern, though there are some definite rules governing the subject, establishing a limit beyond which a jury should not be allowed to extend liability.In Beck v. Carter, supra, the excavation was 10 feet from the established boundary of the thoroughfare.The premises between the boundary and the excavation had been for a long time commonly used by the public, and were essentially a part of it, so that a person traveling outside of such established boundary could not have been considered a trespasser.The court held that under such circumstances it could not be said, as a matter of law, that the excavation was so far removed from the thoroughfare as not to be in dangerous proximity to it.In Crogan v. Schiele, 53 Conn. 186, 1 Atl. 899...