Klein v. Montgomery Ward & Co.
| Decision Date | 03 March 1953 |
| Citation | 263 Wis. 317,57 N.W.2d 188 |
| Parties | KLEIN, v. MONTGOMERY WARD & CO. |
| Court | Wisconsin Supreme Court |
Action to recover damages for personal injury. The jury found for the plaintiff after which the trial court, deeming that evidence prejudicial to the defendant had been erroneously received, set aside the verdict and granted a new trial. Plaintiff has appealed seeking to have judgment in accord with the verdict and defendant has moved to review, contending that the court should have granted its motion after verdict to enter judgment dismissing the complaint.
The defendant maintains a store in the city of Madison in which it sells farm equipment and supplies. The plaintiff operates an orchard. He was familiar with defendant's store and went to it expecting to buy a sprayer pump. As he entered the store he saw many articles of farm equipment displayed on counters and on low platforms. The clerk whom he first approached directed him to another clerk across the salesroom and Mr. Klein walked directly toward the second clerk. Lying on the floor across the course which he took was a length of woven wire fencing which a salesman had unrolled and was measuring for sale to a customer. Mr. Klein saw the fencing and could have detoured around it but believed that to be unnecessary and attempted to walk across it. In doing so he stepped on the wire with his right foot and then in some manner caught his left foot under the near edge of the fencing, which tripped him and caused him to fall and receive the injuries of which he complains. An ambulance was called and Mr. Klein was sent to the hospital after which the manager of the farm store went in his automobile to the Klein home, told Mrs. Klein what had happened and took her to the hospital to see her husband. Over defendant's objection Mrs. Klein was permitted to testify that on the way to the hospital the manager told her that 'he felt that the was a bad place to unroll the wire.'
The jury found that the defendant failed to keep the floor of its farm store as free from danger to customers as the nature of the employment, place of employment, or public building would reasonably permit and that such failure was a cause of the accident. It also found that Mr. Klein was negligent as to his own safety and that his negligence was a cause of the accident. The jury apportioned the causal negligence 65% to the defendant and 35% to the plaintiff. When plaintiff offered the testimony of the store manager's remark that the wire was unrolled in a bad place, the court stated that the evidence might be received and would be treated in the instruments to the jury so that no error would result. The instruction given was to the effect that admissions by an employee are regarded as very weak evidence. After verdict the court considered the net result was prejudicial error, particularly in view of the near balance of negligence as found by the jury, and ordered a new trial for that reason.
Schubring, Ryan, Petersen & Sutherland, Madison, for appellant.
Rieser, Mathys, McNamara & Stafford, Madison, for respondent.
We have no doubt that the so-called admission should have been excluded and its receipt in evidence was not rendered unprejudicial by the instruction on it. Appellant relies on United American Fire Ins. Co. v. American Bonding Co., 1911, 146 Wis. 573, 131 N.W. 994, 40 L.R.A.,N.S., 661, to...
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