Jeske v. George R. Wolff Holding Co.

• Decision Date: 31 May 1957
• Docket Number: No. 37084,37084
• Citation: 83 N.W.2d 729,250 Minn. 16
• Parties: Fred W. JESKE, Appellant, v. GEORGE R. WOLFF HOLDING COMPANY et al., Respondents.
• Court: Minnesota Supreme Court

Page 729

83 N.W.2d 729

250 Minn. 16

Fred W. JESKE, Appellant, v. GEORGE R. WOLFF HOLDING COMPANY et al., Respondents.

No. 37084.

Supreme Court of Minnesota.

May 31, 1957.

Syllabus by the Court

1. Where evidence is so contradictory and doubtful that verdict based thereon must be considered to be result of conjecture and speculation, verdict should not be permitted to stand.

2. A jury is not required to reject testimony of a party because of contradictory statements elicited from him upon cross-examination. In negligence cases, where there is conflicting evidence or where there may be reasonable disagreement as to inferences to be drawn from undisputed facts, ordinarily the right to determine such conflicts and to draw such inferences rests with jury.

3. Where plaintiff first testified that he fell upon defendants' steps because of leaves accumulated thereon; but later testified that he did not know what he had slipped upon and had been told afterwards that there were lots of leaves around there; and finally testified that he did not know how he slipped; and where there was substantial evidence that he was intoxicated at the time of his fall, Held that evidence as to cause of his fall is so speculative and conjectural that verdict in his favor should not be permitted to stand.

4. In the absence of proof that stairs upon which plaintiff fell were defective, or that they had been constructed or maintained in such a way that they might be regarded as dangerous to persons lawfully using them, Held there is no basis to support finding that defendants' failure to provide handrails for such stairs constituted negligence.

Robert J. Munson, Minneapolis, for appellant.

Richards, Janes, Hoke, Montgomery & Cobb, and Greer E. Lockhart, Minneapolis, for respondents.

THOMAS GALLAGHER, Justice.

Action for personal injuries sustained by plaintiff as the result of falling on the front concrete steps of the clubhouse owned and operated by George R. Wolff Holding Company and George R. Wolff Post Number 425, Veterans of Foreign Wars, in Hopkins. The accident occurred about 1 a.m. October 17, 1953. At the time, plaintiff was 74 years of age and in the employ of Glen Lake Sanitarium as a fireman.

As a result of the accident, plaintiff sustained rather serious injuries, and surgery was required and performed upon his skull to relieve pressure, with some resulting loss of memory. The jury returned a verdict in his favor in the sum of $2,500. The trial court thereafter granted defendants' motion for judgment in their favor notwithstanding the verdict, and plaintiff appeals from the judgment entered.

The basis of plaintiff's claim for negligence on the part of defendants proximately causing the accident is that defendants permitted an accumulation of leaves upon the steps which caused him to slip thereon; and failed to provide proper handrails for such steps. In a memorandum attached to its order setting aside the verdict, the trial court stated:

'In my opinion, the plaintiff's testimony is not sufficient to establish the fact that there was a dangerous condition existing where he slipped, created by an accumulation of leaves * * *. His testimony is so uncertain and conflicting that a finding based thereon would be a mere guess. * * *

'* * * the plaintiff's testimony is discredited by its uncertainty and contradictions. Because it is the only evidence in his behalf relating to the presence, at the time that the plaintiff slipped, of leaves at the place where he slipped, and also relating to what he stepped and slipped on, the issue of the negligence of the defendants predicated on the existence of a dangerous condition created by an accumulation of leaves and the issue of the causal connection between such negligence and the plaintiff's injuries are left to the realm of conjecture. I do not think that a verdict against the defendants based on proof of that character with respect to controlling facts should be permitted to stand. * * * 'It is undisputed that the defendants did not maintain a handrail on the stairs. * * *

'* * * Plaintiff failed to prove that the stairs * * * were defective or that they were constructed or maintained in a way which might be regarded as dangerous to persons using them. There was an absence of adequate proof that a dangerous condition existed on the stairs and that the defendant knew or should have known of it. It is clear that liability cannot be imposed on the defendants on account of the absence of a handrail on the stairs.'

Plaintiff testified that he arrived at the clubhouse about 8:30 p.m. October 16, 1953, to attend a bean feed; that prior thereto he had been drinking beer in Hopkins; that he continued to drink beer after his arrival at the club. There is evidence that he left the clubhouse by taxicab at about 12:30 a.m. October 17, 1953, but returned almost immediately. The accident happened after he left the second time about 1 a.m. He had no recollection as to the details of his leaving the club, and no one saw the accident. He was found upon the ground about 13 feet from the bottom of the steps and was taken to the hospital immediately by members of the club.

Plaintiff testimony as to the cause of the accident was conflicting and uncertain. He first testified that as he descended the steps he slipped upon leaves which he saw accumulated there. Later, he testified that he did not know upon what he had slipped. Then he stated he was told afterwards that there were lots of leaves around there. At still another time he testified that he remembered seeing leaves upon the top of the platform and slipped before reaching the first step. Later, he was asked how he slipped and replied that he did not know. Reference to the following excerpts from his cross-examination are illustrative of this uncertainty:

'The Witness: Well, I didn't know what they were. They was there, must have been, I wouldn't have slipped on them, wouldn't have fell down.

'The Witness: I didn't know whether they was leaves or what they were.

'Q. * * * When did you decide that there were leaves there?

'A. Well, there was a lot of them around and So I was told afterwards.' (Italics supplied.)

'Q. Now, how did you slip?

'A. That I don't know.' (Italics supplied.)

There is substantial evidence that plaintiff was intoxicated at the time he fell, although he denied this. One member of the club testified that when plaintiff arrived at about 9 p.m. he had 'a pretty good jag on.' Others testified to seeing him consume at least three drinks of hard liquor during the evening. The bartender testified that the last time plaintiff came to the bar he was refused service because of his intoxicated condition; that he was sent to the kitchen so that he might eat something; that he had trouble handling his plate and that someone had to help him. There was evidence that plaintiff had won a turkey in a raffle held during the evening and that it had been necessary for someone to go through his pockets to find his winning ticket. There is evidence that a club member and the cab driver had been required to help him to his cab because of his intoxicated condition; that at the time he had held his head down and had kept mumbling to himself; that after he had entered the cab he had been...