Hommel v. Badger State Inv. Co.

• Decision Date: 13 November 1917
• Citation: 165 N.W. 20,166 Wis. 235
• Parties: HOMMEL v. BADGER STATE INV. CO.
• Court: Wisconsin Supreme Court

166 Wis. 235

165 N.W. 20

HOMMEL

v.BADGER STATE INV. CO.

Supreme Court of Wisconsin.

Nov. 13, 1917.

Appeal from a judgment of the Circuit Court for Milwaukee County; John J. Gregory, Circuit Judge. Affirmed.

Action to recover compensation for personal injuries.

Plaintiff, a widow, who customarily earned twelve to fifteen dollars per week, and for about six months in the year, twenty-five dollars per week, about 5:45 p. m. of November18, 1915, while passing through the only entrance of the Merrill Building in the City of Milwaukee leading to a cafeteria therein on the second floor, tripped on an inner step and fell to the floor of the lobby and was severely injured. The structure was a public building within the meaning of section 2394--48, Stats. as it existed at the time of the injury, which provided as follows:

“Every employer and every owner of a place of employment or a public building now or hereafter constructed, shall so construct, repair or maintain such place of employment or public building, and every architect shall so prepare the plans for the construction of such place of employment or public building, as to render the same safe.”

The evidence was to this effect: Plaintiff was entitled to the protection of the statute. It was defendant's duty to comply with the provisions thereof in regard to the safety of the entrance. She had entered the building where the accident occurred several times prior thereto, but, by reason of changes at the entrance, its condition at the particular time was materially different from what she was familiar with. There were double outside doors swinging outward. Inside thereof, there was a vestibule about five feet square. At the far side of the vestibule there was a step five inches high made of marble, of a different color than the floor of the vestibule and that of the lobby beyond. Located about four inches back of the edge of the step there were double doors, hung so as to swing both ways. Then came a lobby with a stone floor. The vestibule was lighted on the occasion in question. Plaintiff opened one of the outer doors and stepped into the vestibule. She then stepped to where it was necessary to open one of the inner doors in order to go into the lobby. Supposing the floor of the lobby to be on a level with the floor of the vestibule, but not taking any particular observation of the situation, after opening one of the inner doors by pushing it inwardly, she moved forward and was tripped by the step, causing her to fall and fracture her left femoral bone and otherwise injured her left leg. She suffered much pain, was confined to her bed at a hospital for six months, and then and thereafter, up to the time of the trial, she was compelled to have much attention by a physician and nurse and suffered much pain. She was rendered partially helpless for life and her earning power for about one year and three months was totally destroyed and was, to a great extent, permanently inpaired. Her hospital bill was $881.00, doctor bill $442.00 and she incurred expense for care by her daughter in law from the third day of May, 1916, to the time of the trial which was testified to by the latter to be reasonably worth $30.00 per month.

The cause was submitted to the jury for a special verdict and they rendered the following:

“1. Was the entry to the Merrill Building as it existed on November 18, 1915, so constructed as to be safe to tenants or the public using it as the use thereof would reasonably permit?

Answer: ‘No.’

2. If you answer the first question ‘No’ then was such fact the proximate cause of the injury?

3. Was plaintiff guilty of any want of ordinary care which proximately contributed to produce the injury?

Answer: ‘No.’

4. At what sum do you assess plaintiff's damages?

Answer: ‘$11,000.’ ”

Various motions were made on behalf of defendant including a motion to set aside the verdict as excessive. The motions were denied on condition of plaintiff consenting to a reduction of the amount of damages as found by the jury to $8,000, and the motion on behalf of plaintiff for judgment on the verdict was granted conditioned on consent being given to a reduction as stated. In due course judgment was rendered in plaintiff's favor pursuant to such determination from which this appeal was taken.

Lines, Spooner & Quarles, of Milwaukee, (Willet M. Spooner and Leo Mann, both of Milwaukee, of counsel), for appellant.

Umbreit, Mahon & Jenner, of Milwaukee, for respondent.

MARSHALL, J.

Does the evidence conclusively show respondent to have been guilty of contributory negligence? Counsel for appellant contend that it does and that the trial court erred in not granting a motion made on the trial for a directed verdict in appellant's favor on that ground, and in not granting a motion made on such ground for judgment in its favor notwithstanding the verdict.

[1] All evidence bearing on the subject of whether respondent was guilty of contributory negligence has been carefully considered resulting in a conclusion that the trial court was not clearly wrong in holding that it presented a fair jury question. It is needless to indicate the nature of the evidence with much, if any, greater fulness than has been done in the statement. The jury was warranted in coming to the conclusion therefrom that respondent was not familiar with the situation, particularly, that she had not seen the inner doors nor the step which came out but four inches from the bottom thereof; that when she opened the outer door and stepped through, clear of the return swing of it, into the vestibule, she was so suddenly confronted by the inner doors which she momentarily reached, that her attention to her pathway was, for the instant, diverted thereby; that her attention was more easily than ordinarily so diverted because she was intent upon the object of her journey to the cafeteria on the floor above, the stairway leading to which came into her view instantly upon the inner door being pushed in the direction she was going. Under all those and other circumstances, particularly the fact that the location of the step in connection with that of the inner doors created a dangerous situation which, because of the statutory obligation of appellant, she had no reason to think might probably exist, it was not so conclusively inconsistent with due care for her to push inwardly the door and quickly attempt to step forward, supposing the floor of the vestibule and that of the lobby were on the same level, as she undoubtedly did, that the question of contributory negligence should have been taken from the jury.

[2][3] True, in case of a defect in the pathway of a traveler being known to him or in plain sight, yet he is injured by it, the ordinary presumption of due care on his part is thereby changed to a rebuttable presumption of want of such care, and evidence of some reasonable excuse for not observing and avoiding danger from the defect is necessary in order to carry the question in regard thereto to the jury. One is not bound, absolutely, to see every defect in his pathway which is plainly observable nor to remember the existence of such a defect of which he has knowledge. Any reasonable excuse, in view of the whole situation, for not doing so is sufficient to raise a jury question in regard to the matter. Such slight circumstances may be fairly considered by a jury to be sufficient, that the issue in regard to such a matter is seldom...