LeHman v. Amsterdam Coffee Co.

• Decision Date: 02 May 1911
• Citation: 146 Wis. 213,131 N.W. 362
• Parties: LEHMAN v. AMSTERDAM COFFEE CO.
• Court: Wisconsin Supreme Court

146 Wis. 213

131 N.W. 362

LEHMAN

v.AMSTERDAM COFFEE CO.

Supreme Court of Wisconsin.

May 2, 1911.

Appeal from Circuit Court, Milwaukee County; J. C. Ludwig, Judge.

Action by Wendeline Lehman against the Amsterdam Coffee Company. Judgment for plaintiff, and defendant appeals. Reversed and rendered conditionally.

Action for personal injuries. The plaintiff, a laundress by occupation, 65 years of age, fell down an open stairway in the back part of the defendant's coffee, tea, and food store in the city of Milwaukee, and suffered serious injuries. She claimed negligence in leaving the stairway open and unguarded, and in failing to warn her of its existence. The jury returned the following special verdict:

“First question: Was the plaintiff injured by falling into an open stairway in defendant's store on October 8, 1908? Answer by Court: Yes.

Second question: Did the plaintiff go to the southeastern portion of defendant's store, where the open stairway was situated, at the invitation of Miss Lena Orth, either express or implied? Answer by Court: Yes.

Third question: Ought the clerk, Lena Orth, in the exercise of ordinary care, to have reasonably apprehended that the open stairway was likely to become dangerous to the plaintiff when exercising ordinary care in that part of the store under the circumstances existing at the time of the accident? Answer: Yes.

Fourth question: If you answer the third question ‘yes,’ ought the clerk, Lena Orth, in the exercise of ordinary care, to have warned the plaintiff of the open stairway under the circumstances existing at the time of the injury? Answer: Yes.

Fifth question: If you answer the fourth question ‘yes,’ was the failure of Miss Lena Orth to warn the plaintiff of the stairway opening the proximate cause of the injury? Answer: Yes.

Sixth question: Ought the plaintiff, in the exercise of ordinary care, to have seen the stairway opening before the accident, in time to have avoided the injury? Answer: No.

Seventh question: Was the plaintiff guilty of a want of ordinary care which proximately contributed to the injury? Answer: No.

Eighth question: At what sum do you assess plaintiff's damages? Answer: $1,750.00.”

Motions by the defendant to change the answers to the sixth and seventh questions for judgment upon the verdict as so changed and to set aside the verdict and grant a new trial were successively overruled, and judgment rendered for the plaintiff, from which the defendant appeals.Alfred Klingelhoefer and Lynn S. Pease, for appellant.

Hugo Trost (Churchill, Bennett & Churchill, of counsel), for respondent.

WINSLOW, C. J. (after stating the facts as above).

There is very little material dispute as to the facts of the accident. The defendant's store is about 80 feet long, and faces west. The rear half of the store is used for storage of coffee, tea, and other goods, and not for the reception of customers. In the extreme southeast corner is an open stairway in the floor, entered from the east and surrounded on the north and west by a railing somewhat less than three feet in height, and on the south by the south wall of the store, upon which there was shelving. Around this railing on the north and west were piled bags of coffee, boxes of cocoa, and other merchandise from 3 to 4 1/2 feet in height, practically concealing it from view. The stairway was about two feet and one-half wide. The store was lighted by an arc light 12 feet from the floor, hanging near the middle of the store, about 30 feet from the east end of the stairway. The plaintiff entered the store at dusk October 8, 1908, to buy a lamp chimney. She had traded at the store before and knew the clerk, but testified that she did not know of the existence of the stairway or see it. She went to the cashier's desk, and stated her want to the cashier, Lena Orth, and testified that Miss Orth told her to come along with her. Miss Orth testified that, after the plaintiff stated that she wanted a lamp chimney, she (Miss Orth) said “All right, I will get one for you”; that she got up from her chair, and plaintiff said she did not have her burner along, but, if she saw the chimney, she would know the kind she wanted; that she (Miss Orth) then started to walk to the back of the store, and plaintiff was right back of her, talking to her and telling her about how the chimney was broken; that plaintiff followed her to the extreme rear of the store to a point a few feet east of the open stairway, where lamp chimneys were kept on shelves along the east and south walls; that she got one chimney down, and plaintiff told her it was not the right kind, and that then she wanted to get down some other chimneys from shelves immediately south of the opening of the stairway, and could not reach them, so she said to the plaintiff, “Wait here till I get a chair,” and started to go back to the middle of the store to get a chair or stepladder, and as she was just getting the chair she heard a scream, and plaintiff had fallen down the stairway. If plaintiff's version of the transaction be true, there was an express invitation. If Miss Orth's version be true, there was an implied invitation to go to the back part of the store to a place close to the stairway, and the trial court was...