Heiden v. City of Milwaukee

• Court: Wisconsin Supreme Court
• Writing for the Court: NELSON
• Citation: Heiden v. City of Milwaukee, 226 Wis. 92, 275 N.W. 922 (Wis. 1937)
• Decision Date: 08 November 1937
• Parties: HEIDEN v. CITY OF MILWAUKEE.

226 Wis. 92

275 N.W. 922

HEIDEN

v.CITY OF MILWAUKEE.

Supreme Court of Wisconsin.

Nov. 8, 1937.

Appeal from a judgment of the Circuit Court for Milwaukee County; Otto H. Breidenbach, Judge.

Affirmed.

Action commenced January 31, 1935, by the plaintiff, Anna Heiden, for the purpose of recovering from the defendant, City of Milwaukee, damages sustained by her as a result of her falling down certain steps in the basement corridor of the Maryland Avenue School Building which was owned by the city. The action is grounded upon chapter 101, Stats.1933, the “safe place” statute. The plaintiff asserted in her complaint that the passageway leading to the girls lavatory in the basement of said building, as it existed on the day she was injured, was so improperly constructed and maintained as to render said building not safe. Trial was had to the court and a jury. The jury, by its special verdict, found in substance that the corridors leading to the girls' lavatory in said building, as they existed on August 24, 1933, were not safe because of the steps at the entrance to the corridor which led directly to the said lavatory; that such lack of safety was a cause of plaintiff's injury; that the said corridors as they existed at that time were not maintained so as to be safe, because they were not lighted, and that such lack of safety was a cause of plaintiff's injury; that the plaintiff was guilty of a want of ordinary care which proximately contributed to produce her injury; that the damages sustained by the plaintiff amounted to $2,500; and that 10 per cent. of the total causal negligence was attributable to her. Upon the coming in of the verdict, the plaintiff moved for judgment in her favor, and the defendant made the usual motions to change the answers to certain questions of the special verdict and for judgment in its favor on the verdict as so changed, for judgment notwithstanding the verdict, and in the alternative for a new trial. The court granted the plaintiff's motion for judgment and denied all of the defendants' motions. From a judgment for $2,250 in favor of the plaintiff and against the defendant, entered February 23, 1937, the defendant appealed. Additional facts will be stated in the opinion.Walter J. Mattison, City Atty., and Omar T. McMahon and Mathias Schimenz, Asst. City Attys., all of Milwaukee, for appellant.

Hannan, Johnson & Goldschmidt, of Milwaukee, Herbert L. Wible, of Milwaukee, (of counsel), for respondent.

NELSON, Justice.

The city of Milwaukee is the owner of the Maryland Avenue School Building and the grounds adjacent thereto. During the summer of 1933, the school grounds were used with the consent of the city by children and adults alike for play and recreational purposes. The activities conducted upon those grounds were a part of a general summer playground movement or system fostered by the city. On August 24, 1933, a final or closing childrens' summer festival was held there. The festival was held during the early evening of that day. Approximately a thousand people attended the exercises. The participants, during the course of the exercises, went in and out of the north entrance to the school building for the purpose of putting on and removing their costumes. The plaintiff, in response to a typewritten invitation distributed by the children, went to the school grounds at about 6 o'clock in the evening to witness the exercises. Shortly before 7 o'clock it became necessary for her to go to a toilet. The sun was setting at about that time (6:41 p. m.) and the twilight visibility was good. She proceeded to the north entrance to the school building, where she encountered a playground supervisor who was stationed there to guard the entrance. Upon making her needs known, the supervisor permitted her to enter the building. A rule of the department permitted adults to enter the building for the purpose of using the toilets. She had never been inside the building before. No toilets were located on the first floor of the building excepting two in the kindergarten, the use of which was restricted to the kindergartners. All of the girls and teachers, excepting those in the kindergarten, had to use the girls' lavatory, which was located in the basement. It was customary during the summer to lock all school room doors. However, on the evening in question one of the class rooms on the first floor was being used by the girls for a dressing room and from that room artificial light radiated into the hall on the first floor. The building was not otherwise lighted at the time the plaintiff entered it or while she was thereafter proceeding toward the girls lavatory. When inside the building and upon inquiry, the plaintiff was informed that the girls' toilet was in the basement. Accompanied by her informant, a school girl of about thirteen years of age, who had attended that school from the second to the eighth grade, the plaintiff descended into the basement. They then proceeded in a southerly direction along a corridor straight ahead for about thirty feet. While the corridor was dark, there was sufficient light in the corridor from outside sources to render it unnecessary for them to feel their way. It was just dark enough to make it somewhat difficult to walk along that first corridor. They then turned to the east or to their left, a distance of about four feet through an archway which led to a platform or landing at the foot of stairs which led to the Prospect avenue entrance on the east, and also to the girls' toilet room along another corridor to the south. Outside light from a window to the east of the archway and above the stairs made the platform somewhat more lighted than the first corridor through which they had just passed. On the platform or landing they then turned to the south, and the plaintiff, in response to the directions of the school girl who was still at her side, to walk straight down the corridor, took but a single step forward before falling down four steps which were located about two feet south of the archway through which they had just come. The plaintiff failed to see the steps because of the semidarkness and in the absence of any artificial light at or near the steps. As a result of the fall, the plaintiff sustained a fracture of the condyle of the femur of her left leg, a dislocation of the knee joint, and a tearing of the muscles and ligaments about the knee with probable permanently disabling effects. There were apparently sufficient lights to light the basement corridor had they been turned on. Those who were in charge of the playgrounds were also custodians of the grounds and buildings and were in charge of the lights on the evening of the festival. They had been fully instructed by the school janitor with respect to the operation of the lights in the school building. The steps upon which the plaintiff fell were four in number, approximately five and a half feet wide, the treads of which were approximately ten inches wide and the risers of which were five to six inches high. The steps extended into the corridor from the platform approximately forty to forty-five inches. The level of the platform was about two feet above the level of the corridor floor leading to the girls lavatory.

[1][2] The principal contention of the defendant is that the safe place statute does not apply to a situation like the one here, because, at the time the plaintiff was injured, the city was promoting an exhibition in connection with the supervised school grounds play and while so acting was performing a purely governmental function. Under the well-established law, the state, a county, or a city is not liable for the negligence of its officers, agents, or servants while acting in a governmental capacity or in the discharge of a governmental function. Apfelbacher v. State, 160 Wis. 565, 152 N.W. 144;Gensch v. Milwaukee, 179 Wis. 95, 190 N.W. 843;Erickson v. Village of West Salem, 205 Wis. 107, 236 N.W. 579;Virovatz v. Cudahy, 211 Wis. 357, 247 N.W. 341;Crowley v. Clark County, 219 Wis. 76, 261 N.W. 221. It is conceded that in putting on the playground exhibition the city was acting in the discharge of a purely governmental function. It is well established that in conducting a public school the municipality, whether city or school district, is performing a public duty and acts in a governmental capacity. Folk v. Milwaukee, 108 Wis. 359, 84 N.W. 420;Juul v. School District, 168 Wis. 111, 169 N.W. 309, 9 A.L.R. 904;Srnka v. Joint District No. 3, 174 Wis. 38, 182 N.W. 325;Sullivan v. School District, 179 Wis. 502, 191 N.W. 1020.

This action, however, is not grounded upon the common law or upon any asserted negligence against the city, its officers, agents, or servants. It is grounded solely upon the safe place statute.

Chapter 101, Stats.1933, so far as here material, provides:

Section 101.06. “*** every owner of *** a public building now or hereafter constructed shall so construct, repair or maintain such *** public building *** as to render the same safe.”

Section 101.01 (11). “The term ‘safe’ or ‘safety’ as applied to *** a public building, shall mean such freedom from danger to the life, health, safety or welfare of employes or frequenters, or the public *** as the nature of the employment, place of employment, or public building, will reasonably permit.”

Section 101.01 (12). “The term ‘ public building’ as used in sections 101-01 to 101-29 shall mean and include any structure used in whole or in part as a place of resort, assemblage, lodging, trade, traffic, occupancy, or use by the public, or by three or more tenants.”

Section 101.01 (13) “The term ‘owner’ shall mean and include every person, firm, corporation, state, county, town, city, village, school district, sewer district, drainage district and other public or quasi-public corporations as well as any manager, representative, officer, or other person having ownership, control or custody of any place of employment or ...