Lee v. Milwaukee Gas Light Co.

• Decision Date: 28 June 1963
• Citation: 122 N.W.2d 374,20 Wis.2d 333
• Parties: Annie Mae LEE, Plaintiff-Respondent, v. MILWAUKEE GAS LIGHT COMPANY, a domestic corporation, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 374

122 N.W.2d 374

20 Wis.2d 333

Annie Mae LEE, Plaintiff-Respondent, v. MILWAUKEE GAS LIGHT COMPANY, a domestic corporation Defendant-Appellant.

Supreme Court of Wisconsin.

June 28, 1963.

Sonnenberg & Boden, Milwaukee, for appellant.

Eisenberg & Kletzke, Milwaukee, Edwin A. Star, Milwaukee, of counsel, for respondent.

HALLOWS, Justice.

The defendant argues the court erred in not granting an involuntary nonsuit against the plaintiff, in not directing a verdict and in not changing the answers of the verdict and dismissing the complaint. All three assignments rest on the same proposition that there was no direct evidence of negligence or causation and the jury could only speculate.

Basically, the defendant's position challenges the sufficiency of the evidence. The motion for involuntary nonsuit is equivalent to a demurrer to the evidence. Bartz v. Braun (1961), 14 Wis.2d 425, 111 N.W.2d 431; France v. Sullivan (1937), 223 Wis. 477, 271 N.W. 42; Obenberger v. Interstate Oil Co. (1933), 211 Wis. 245, 248 N.W. 97. On such a motion, the court was required to review the evidence in the light most favorable to the plaintiff including all the reasonable inferences which may be drawn. Likewise, on a motion to direct the verdict the court is required to consider the evidence most favorable to the party against whom a direction of the verdict is sought. In Davis v. Skille (1961), 12 Wis.2d 482, 107 N.W.2d 458, we stated: 'A verdict should only be directed against a plaintiff where plaintiff's evidence, giving it the most favorable construction it will reasonably bear, is insufficient to sustain a verdict in plaintiff's favor,' citing Western Casualty & Surety Co. v. Dairyland Mut. Ins. Co. (1956), 273 Wis. 349, 77 N.W.2d 599; Pelitsie v. National Surety Corp. (1956), 272 Wis. 423, 76 N.W.2d 327; Radmann v. Chicago, M. & St. P. R. Co. (1890), 78 Wis. 22, 47 N.W. 97. If a material question of fact exists upon which reasonable minds could differ, the motion must be denied. Bruno v. Golden Bell Dairy (1961), 15 Wis.2d 106, 112 N.W.2d 199; McDonald v. Bituminous Casualty Co. (1960), 11 Wis.2d 202, 105 N.W.2d 312. The motion to set aside the verdict likewise raises the question of whether there is or is not sufficient evidence upon the issue to take the case to the jury. Nitka v. Van Camp, Inc. (1949), 256 Wis. 119, 40 N.W.2d 570; Wear v. Northern States Power Co. (1952), 262 Wis. 9, 53 N.W.2d 777.

An examination of the material facts favorable to the plaintiff is therefore necessary. The defendant Milwaukee Gas Light Company owned the building on the north side of East Wisconsin avenue in the city of Milwaukee. Across the front of the building next to the public sidewalk there were installed large 1/4"' plate glass windows. The particular window in question was 9'10"' in width and 11'9"' in height. On November 20, 1958, Annie Mae Lee, the plaintiff, was standing on the public sidewalk facing east about six feet from the building and somewhat west of the window, waiting for a bus. It was a windy day with the wind from the east. The window made a popping noise and broke outward shattering on the public sidewalk and particles of glass landed on the plaintiff's head and shoulders. The plaintiff testified she felt a piece of glass enter her left eye. A witness who was nearby testified bits of glass covered the plaintiff's shoulders and part of her head and the plaintiff immediately put her hands over her eyes and said, 'I got something in my eye.' Plaintiff was examined by a doctor shortly after the occurrence but he found no foreign object in the plaintiff's eye or any evidence of a puncture, abrasion or penetration of the eyeball. There was, however, a redness in the area. Plaintiff was examined the following day by another doctor who also found no foreign body in the eye but treated her for her eye difficulty. The injury did not affect permanently the plaintiff's sight but she is unable to sew or look at television without her eye becoming reddened and discharging. This condition is somewhat alleviated by the use of medication.

One of the witnesses for the plaintiff testified the setting of the glass window was wrong and too light for the height of the window. The glass was set on two four-inch-long steel blocks, having a soft lead topping and positioned one-fourth the distance from each end. The glass is held in place by bronze strips around its perimeter with lugs every 10 inches. The bronze strips, fastened lengthwise to the building, were 1"' wide and overlapped the glass 3/8"'. It was testified these strips should have been 1 1/2"' wide. The wind on the day in question apparently did not exceed 23 m. p. h. and under the Beaufort scale would be characterized as 'moderate breeze' to 'fresh breeze.' The plaintiff's expert testified the standard safety limit for window settings in Milwaukee on the day of the accident was to withstand winds up to 65 miles per hour. On behalf of the defense there was testimony that about two weeks prior to the accident the window had been examined for the purpose of inserting packing between the plate glass and its frame in order to reduce the amount of dust and dirt filtering into the building, and the settings were standard and customary with that type of window when the building was built more than 20 years ago. However, we must accept the plaintiff's expert witness' testimony the window did not meet the standards for the city of Milwaukee which have been prevalent for the last 10 or 15 years. Glass windows exceeding 8' or 9' require some support by way of a mullion or device which would stabilize the window from vibrating.

The owner of the building abutting a public highway, which includes a public sidewalk, must exercise reasonable care not to endanger the safety of persons lawfully using the public way. While the owner or person in control of the building is not an insurer, he is bound to use reasonable care and skill in the construction and maintenance of the building, which includes the duty to inspect from time to time. Majestic Realty Corp. v. Brandt (1929), 198 Wis. 527, 224 N.W. 743; Delaney v. Supreme Investment Co. (1947), 251 Wis. 374, 29 N.W.2d 754 (overruled on another point in Fisher v. Simon (1961), 15 Wis.2d 207, 112 N.W.2d 705); 25 Am.Jur., Highways, p. 658, sec. 364; see Anno., 7 A.L.R. 204. The duty to inspect one's building is recognized in Feeney v. New York Waist Co. (1927), 105 Conn. 647, 136 A. 554, 50 A.L.R. 1539; Smith v. Earl D. Hanson Inc. (1957), 9 Misc.2d 244, 170 N.Y.S.2d 866. Defendant argues it fulfilled its duty of inspection when the windows were repacked two weeks before the occurrence. Admitting when the windows were repacked the mechanism for holding the window in place was inspected, this argument does not answer the question of whether such a device or installation was sufficient to free the defendant from negligence.

In addition to the evidence the setting of the glass was too light for the height of the window, the plaintiff relies on the doctrine of res ipsa loquitur. This doctrine has recently been the subject of two exhaustive opinions by this court. Turk v. H. C. Prange Co. (1963), 18 Wis.2d 547, 119 N.W.2d 365; Fehrman v. Smirl (1963), 20 Wis.2d 1, 121 N.W.2d 255. The two elements necessary for the application of the doctrine in Wisconsin are present in this case, namely, the accident must be of a kind which ordinarily does not occur in the absence of someone's negligence, and the accident must be caused by an agency or instrumentality within the exclusive control of the defendant. There can be no dispute the plate glass window in the defendant's building was exclusively within its control. As to the first element, the testimony is to the effect the setting for this large plate glass window was insufficient and too light, that such settings in Milwaukee should be able to hold a window in winds up to 65 miles per hour. The defendant's argument that at the time of the accident there were high winds which would excuse the defendant from liability is without merit.

There is no evidence to justify the conclusion the wind was of such force as to be unforeseeable as a probability in Milwaukee. A 36 m. p. h. wind was considered foreseeable and not an act of God in Leonard Bros. v. Newton (1934), Tex.Civ.App., 71 S.W.2d 613. Whether winds of approximately 80 m. p. h. constituted an act of God was considered a jury question in Uggla v. Brokaw (1907), 117 App.Div. 586, 102 N.Y.S. 857, while a 75 m. p. h. wind during the hurricane Hazel coming with only a 20 minute warning was held to excuse the defendant in King v. Queen Anne Food Products (1958), 5 App.Div.2d 596, 173 N.Y.S.2d 975. It is not the possibility but the probability of harm in terms of foreseeability upon which the liability for negligence rests. Wis. Power & Light Co. v. Columbia County (1962), 18 Wis.2d 39, 117 N.W.2d 597.

There is nothing in the nature of plate glass windows which would immunize such cases from the doctrine of res ipsa loquitur. Nor is there any evidence to explain the breaking of the window because of a foreign object hitting it or because the wind exceeded the force which the installation and setting of the window were capable of withstanding according to the customary standards for that size window in the city of Milwaukee. On the problem of the application of the doctrine of res ipsa loquitur to glass windows, see Anno., Falling Glass--Injury--Liability, 81 A.L.R.2d 897; Young v. Marlas (1952), 243 Iowa 367, 51 N.W.2d 443; Berent v. Metropolitan L. Ins. Co. (1935), 279 Ill.App. 430.

The direct evidence of negligence does not prevent necessarily the application of the doctrine of res ipsa loquitur. Specific elements of negligence not reaching the point of a prima facie case which is overcome by other evidence may be supported by the application of the doctrine, Brunner v. Van Hoof (1958), 4 Wis.2d 459, 90 N.W.2d 551; Turk v. H. C. Prange Co....