Hansen v. Schmidman Properties, Inc.

• Decision Date: 05 June 1962
• Citation: 115 N.W.2d 495,16 Wis.2d 639
• Parties: James HANSEN, Appellant, v. SCHMIDMAN PROPERTIES, INC., a Wis. corporation, et al., Respondents.
• Court: Wisconsin Supreme Court

Page 495

115 N.W.2d 495

16 Wis.2d 639

James HANSEN, Appellant, v. SCHMIDMAN PROPERTIES, INC., a Wis. corporation, et al., Respondents.

Supreme Court of Wisconsin.

June 5, 1962.

Arlo McKinnon, Edward Rudolph, Milwaukee, for appellant.

Kluwin, Dunphy, Hankin & Hayes, Milwaukee, for respondent.

BROWN, Chief Justice.

In its memorandum decision the trial court accurately described the premises where the accident occurred and the circumstances of plaintiff's fall:

'The defendants operated a tavern at 2601 West National Avenue in the City of Milwaukee. The tavern building is located at the southwest corner of West National Avenue and South 26th Street, fronts on the south side of West National Avenue, extends south on the east along and adjacent to South 26th Street. The lot on which the building is located extends to an alley running in an east-west direction. Between the rear of the tavern and this alley defendants maintain a paved parking area for the convenience of customers. A concrete public sidewalk extends along South 26th Street for the entire length of defendants' property to the alley. There is no grass area between the sidewalk, as such, and the curb, as is often the case; here the entire area is a concrete sidewalk from the east side of the building to the curb, that is, up to a point at the rear of the building where the curb is interrupted or flared to form an apron for vehicular access to the driveway. From that point to the alley there is public sidewalk along defendants' property with the sloping apron between the curb line and the sidewalk. The area presents a picture of paved sidewalk from building to curb up to the parking lot; from that point on there is a paved apron and sidewalk. (See Exhibits 2, 3, 4, 5, 7 and 8). * * *

'On the night in question Mr. Hansen in company with a friend visited defendants' tavern. He parked his car, not in the parking lot, but on South 26th Street, south of the driveway. He and his friend left by the side door of the tavern, walked south on the sidewalk; when they reached the driveway to the parking lot Mr. Hansen slipped and fell on some ice which it was determined was on the driveway apron. Mr. Hansen testified that at the time he started walking down the driveway apron intending to go to his car and enter on the left side of the car. The ice was described as a patch about 10 to 14 inches long, about 10 inches wide, about 1/4 inch thick in the center, tapering off to about 1/8th of an inch at the ends.'

Appellant contends that the accident occurred on defendants' private property. This cannot be sustained. The record shows that on February 21, 1837, the then owners of this and the surrounding area platted the locality as Clark's Addition to the Town of Milwaukee. The plat described streets as being 70 feet wide and the owners declare '[we] hereby deed all the land mentioned in said plat for streets, public squares, etc. for the use and purpose therein mentioned.' We concur in the decision of the learned trial court that there has been a dedication and conveyance to the public of a street 70 feet in which where the accident took place. This dedication and conveyance have not been altered. Applying these measurements to the ground in question the dedicated street comes to the building line of defendants' premises,--the line of their building and the parking lot in the rear. The place where appellant slipped and fell is in the street and not inside defendants' lot lines. We need not consider plaintiff's argument that defendants' ownership goes to the center of the street and they would take possession if the street was vacated. The spot where plaintiff slipped is presently in the street and the right of the parties must be determined with recognition of that fact.

Next comes plaintiff's contention that the driveway apron is a place of employment under sec. 101.01(1), Stats.,--the safe- place statute. In Miller v. Welworth Theatres (1956), 272 Wis. 355, 359-360, 75 N.W.2d 286, 289, we determined that:

'* * * The public sidewalk described cannot be translated into an employer's place of employment, because the responsibility of maintaining the sidewalk is not that of defendant; the care and maintenance clearly rests upon the municipality. Sec. 62.17, Stats. It must be recognized that in a state where there is no obligation on the abutting landowner to keep the sidewalk in front of his premises in repair or in a safe condition for public travel, in the absence of a statute or ordinance imposing such duty upon him a defect in the sidewalk not caused by him cannot be charged against him. * * *'

This applies here even more clearly when the alleged defect is in the part of the street constructed for use by vehicles and not by pedestrians, such as plaintiff.

Appellant relies on Schwenn v. Loraine Hotel Co. (1961), 14 Wis.2d 601, 111 N.W.2d 495. There the pedestrian fell in a driveway which was within the street lines, and we held the location was a place of employment under the safe-place statute. Although title to the location was in the municipality Schwenn is distinguished from Miller v. Welworth Theatres, supra, and from the case at bar by reason of Schwenn's peculiar facts. In that case the defendant Hotel Company and the defendant Cab Company, for a great many years,...