Greenfield v. Miller

• Citation: 173 Wis. 184,180 N.W. 834
• Parties: GREENFIELD v. MILLER.
• Decision Date: 11 January 1921
• Court: United States State Supreme Court of Wisconsin

173 Wis. 184

180 N.W. 834

GREENFIELD

v.MILLER.

Supreme Court of Wisconsin.

Jan. 11, 1921.

Appeal from Circuit Court, Milwaukee County; G. N. Risjord, Judge.

Action by Mildred M. Greenfield against Frank Miller. From a judgment for defendant, plaintiff appeals. Affirmed.

This action was brought to recover damages which plaintiff sustained by falling on the floor in the residence of defendant in the city of Racine. Some time prior to December 31, 1916, the defendant invited the plaintiff and her husband to spend New Year's Eve and New Year's Day at the home of defendant, which had been recently finished, the floors highly polished, and oriental rugs thereon. While walking through the house, the plaintiff slipped on a small oriental rug about 3 1/2 feet or 4 feet square and injured her leg.

The plaintiff alleges substantially: That on December 31, 1916, the plaintiff was the guest of the defendant and his wife at their home in Racine. That defendant's residence had been completed a short time prior and the floors were of hardwood highly polished and slippery. That there was a corridor leading from the living room to a sun parlor with hardwood floor highly polished and very slippery. That the corridor was 15 feet in length and between 3 1/2 to 4 feet wide from wall to wall, and that about 3 1/2 feet to 4 feet from the entrance to said sun parlor from the corridor are posts or pillars extending out from the walls and reaching from the floor to the ceiling. That these two posts are directly opposite each other and in such a position that they might be used for hanging a door, thus giving the space between the pillars and the sun parlor a vestibule effect. That upon the floor of said corridor between the entrance to the sun parlor and the two pillars the defendant had placed an oriental rug 4 feet square, which almost covered the floor, which floor was highly polished and very slippery, and which condition of the floor is not capable of being discovered in the exercise of ordinary care. That plaintiff, in going through the corridor, stepped upon the little rug, which gave way under her, causing her to fall, striking her leg upon one of the pillars, and causing severe injury. That it was the duty of the defendant to have warned the plaintiff of the slippery condition of the floor. That it was the duty of the defendant to have secured or fastened the rugs so they would not slip. That the defendant breached and violated this duty to the plaintiff by failure to warn and by failure to securely fasten the rug, and as the proximate result thereof the plaintiff sustained the damages.

Issue was taken on the complaint and a trial had before the court and a jury. At the close of the evidence both parties moved for a directed verdict, the defendant reserving the question of damages after the consideration of the jury in the event that the court should decide in favor of plaintiff. After arguments of counsel the court below said:

“I cannot see that there is any question for the jury in this case; that there is any proof of negligence on the part of the defendant. No duty was owing by him, under the circumstances to warn the plaintiff of the condition of the floor, and that the condition was nearly, if not quite, as well known to the plaintiff as to the defendant, anyway, and that the jury will be, in the morning, at the opening of the session, directed to return a verdict against the plaintiff and for the defendant, because no cause of action.”

The court below directed verdict in favor of the defendant and denied appellant's motion for a new trial. In directing verdict the court said:

“Gentlemen of the jury, in this case the opinion of the court is that there is no evidence to go to you on the issues involved here. Without considering the question of whether or not an action of this kind lies between these parties, it does not seem to me that there is any breach of any duty owing from the defendant to the plaintiff in this case. I can see that if it appeared from the evidence that it was usual and customary in the vicinity of the home of the defendant to have rugs of that kind fastened to the floor, and that the defendant had knowledge of that custom or usage, or ought to have knowledge of it, and the plaintiff either did not know anything about the conditions there at the time or assumed that this rug was fastened, so as to be reasonably safe, the situation might be entirely different, but that is not this case.”

Judgment was entered in favor of the defendant on the directed verdict and against the plaintiff for the costs and disbursements of the action, from which judgment this appeal was taken.Kaumheimer & Kenney, of Milwaukee, for appellant.

Quarles, Spence & Quarles, of Milwaukee (Arthur B. Doe, of Milwaukee, of counsel) for respondent.

KERWIN, J. (after stating the facts as above).

The issues involved upon this appeal are: (1) Whether the court below erred in directing a verdict for the defendant; and (2) whether error was committed in denying appellant's motion for a new trial.

1. The theory of counsel for appellant is that the duty owing by the defendant to the plaintiff upon the facts in this case is that of ordinary care, and that under this rule it was the duty of the defendant to render the premises reasonably safe for the visit of his guests. The material allegations in the complaint which are the basis of plaintiff's cause of action are set out in the statement of facts heretofore set forth and need not be repeated. Obviously the court below had in mind the rule of law that under the facts in the case the relation existing between the plaintiff and defendant was that of licensor and licensee, and hence the plaintiff took the premises in the condition in which she found them.

[1] It is quite obvious from the argument of counsel for appellant in their brief, as well as from some of the cases cited, that they seek to bring the instant case within the legal definition of invitor and invitee, or cases of licensor and licensee, where a liability existed because of a trap left on the premises by the licensor or active negligence on his part.

Gorr v. Mittlestaedt, 96 Wis. 296, 71 N. W. 656, is a case where a private driveway, 12 feet wide with well-defined boundaries, is situated over 20 feet from cellar, the intervening space being occupied by a grass plot and piles of stone extending from the ends of the cellar nearly to the driveway, the owner of the premises is not liable for injuries received by a person traveling on the driveway by invitation, whose horse became unmanageable and caused the carriage to wholly leave the driveway and pass over the grass plot to the cellar.

Lehman v. Amsterdam Coffee Co., 146...