Heims v. Hanke
| Decision Date | 02 December 1958 |
| Citation | 5 Wis.2d 465,93 N.W.2d 455 |
| Parties | William M. HEIMS et al., Respondents, v. Henry HANKE, Appellant. |
| Court | Wisconsin Supreme Court |
Louis C. Ritter, Milwaukee, for appellant.
Rubin, Ruppa & Wegner, Milwaukee, for respondents.
Appellant contends that there was no evidence of actionable negligence on his part, that William's negligence, if any, could not properly be imputed to defendant, that no nuisance was established, that plaintiff's negligence was the sole cause of the accident, and that the trial court erred in excluding certain evidence.
1. Defendant's negligence. The finding that the icy condition of the sidewalk was caused by the negligence of the defendant is supported by sufficient evidence.
The court could properly find that William, the nephew, was negligent in spilling water on the sidewalk in freezing weather and doing nothing to prevent the formation of ice or to remove or sand it, or to warn pedestrians of it. While the day was not too cold for washing a car bare-handed, the car was in the bright sunlight while the sidewalk where the water as spilled was then or soon would be in the shade of the house. The court could well infer that one in the exercise of ordinary care would have foreseen the formation of a slippery condition and would have done something to protect users of the sidewalk.
It was also permissible to conclude from the evidence that defendant was liable for injuries resulting from William's negligence, on the principle respondeat superior. Probably William was defendant's servant in carrying the water. A servant is one employed to perform service for another in his affairs and who, with respect to his physical conduct in the performance of the service, is subject to the other's control or right to control. Restatement 1 Agency, 2d sec. 220. The evidence permits the inference that William was in that category, although he was an unpaid volunteer. One volunteering service without any agreement for or expectation of reward may be a servant of the one accepting such services. Restatement 1 Agency, 2d sec. 225. The illustration given in Comment a under that section is pertinent:
If William was not the employee or servant of the defendant in the strict sense, he was certainly defendant's agent in fetching water from the faucet, although he received no compensation. Restatement 1 Agency, 2d secs. 1(1) and 16; Krzysko v. Gaudnyski, 207 Wis. 608, 615, 242 N.W. 186. A principal is subject to liability for physical harm to the person of another caused by the negligence of an agent who is not a servant, where the principal is under a duty to have care used to protect others and he confides the performance of the duty to the agent. Restatement 1 Agency, 2d secs. 251(a) and 214; Schmidt v. Leary, 213 Wis. 587, 590, 252 N.W. 151.
When defendant sent his agent to carry water across the sidewalk in freezing weather, he was under a duty to have care used to protect users of the sidewalk from ice, and since he confided the performance of that duty to William, he was responsible for William's negligence in the premises.
Defendant relies on Walley v. Patacke, 271 Wis. 530, 74 N.W.2d 130, for the proposition that owners of property abutting a city street are not responsible for injuries resulting from failure to remove accumulations of snow and ice from the sidewalk. The proposition and the case cited relate only to natural accumulations of snow and ice. One who negligently creates an artificial accumulation of ice on a public sidewalk may be liable to one injured thereby. Johnson v. Prange-Geussenhainer Co., 240 Wis. 363, 368, 373, 2 N.W.2d 723; Walley v. Patake, 271 Wis. 530, 536, 74 N.W.2d 130.
Since the finding of negligence attributable to defendant is sustainable, there is no need to consider whether the condition constituted a nuisance.
2. Apportionment of negligence. The court's apportionment of the total negligence, 90% to defendant and only 10% to plaintiff, has given us serious concern. In mitigation of defendant's negligence, it is pointed out that the weather was not very cold although found to be below freezing, and that defendant and William washed the car with bare hands. On the other hand, it is urged that plaintiff was seriously careless in looking out for her own safety, since by her testimony she was looking straight ahead as she walked along the...
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State v. Friedrich
...it, and on his failure to do so rejection of the evidence will not ordinarily be considered to warrant reversal." Heims v. Hanke, 5 Wis.2d 465, 471, 93 N.W.2d 455 (1958). Even though the trial court did not exercise its discretion on the question of whether the proffered testimony constitut......
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State v. Agnello
...expect the judge to appreciate those issues that are commonplace without substantial assistance by the litigants. Heims v. Hanke, 5 Wis.2d 465, 471, 93 N.W.2d 455 (1958), overruled on other grounds, Butzow v. Wausau Memorial Hospital, 51 Wis.2d 281, 187 N.W.2d 349 (1971); see also Champlain......
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Lang v. Lions Club of Cudahy Wis., Inc.
...to his physical conduct in the performance of the service, is subject to the other's control or right to control." Heims v. Hanke, 5 Wis. 2d 465, 468, 93 N.W.2d 455 (1958), overruled in part by Butzow v. Wausau Mem'l Hosp., 51 Wis. 2d 281, 187 N.W.2d 349 (1971). The typical example is the e......
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Swatek v. County of Dane
...untenable. See Arsand v. City of Franklin, 83 Wis.2d 40, 45-46, 264 N.W.2d 579, 582 (1978) (quoting Heims v. Hanke, 5 Wis.2d 465, 468, 93 N.W.2d 455, 457-58(1958) (" 'A servant is one employed to perform service for another in his affairs and who, with respect to his physical conduct in the......