Lundgren v. Gimbel Bros., Inc.

• Decision Date: 17 November 1926
• Citation: 191 Wis. 521,210 N.W. 678
• Parties: LUNDGREN v. GIMBEL BROS., INC.
• Court: Wisconsin Supreme Court

191 Wis. 521

210 N.W. 678

LUNDGREN

v.GIMBEL BROS., INC.^a1

Supreme Court of Wisconsin.

Nov. 9, 1926.

Dissenting Opinion Nov. 17, 1926.

Appeal from Circuit Court, Milwaukee County; August E. Braun, Judge.

Action by Walter Lundgren against the Gimbel Bros., Inc.From a judgment for defendant, plaintiff appeals.Affirmed.--[By Editorial Staff.]

Plaintiff's wife, while employed by one having a department in defendant's store, was injured through a fall down part of a flight of stairs that was temporarily maintained in its building in Milwaukee while an addition was being built.

The stairway was then and for some time had been used by defendant's employees in carrying foodstuffs to its cafeteria, including salad dressing in bowls.On this occasion and some time between noon and 2 o'clock a space of about five inches on the next to the lowest step was covered with salad dressing which caused the fall.Mrs. Lundgren testified that there was no broken glass or material surrounding or near the salad dressing.The stairway was for the use of the general public visiting the store, as well as for defendant's employees and plaintiff's wife.

The trial court granted a nonsuit, and, from the judgment in defendant's favor, plaintiff appeals.

Owen, J., dissenting.Brennan, Lucas & O'Day, of Milwaukee, for appellant.

Lines, Spooner & Quarles, of Milwaukee, for respondent.

ESCHWEILER, J.

[1] No evidence was offered or contention made that the stairway in question was dangerous on account of being unlighted or of improper construction.Because there was no evidence showing that through any carelessness of any of defendant's employees the slippery substance was spilled on the step and no evidence that it had been there, prior to plaintiff's fall, any such appreciable length of time that the defendant, in the exercise of ordinary care in the supervision of such matters should have known of its existence and thereby become charged with the duty of removing it, the trial court held, and we think rightly, that there was no showing of a breach by defendant of any duty it owed to the plaintiff's wife.

[2] The liability of the defendant for such a circumstance cannot be based upon the mere fact of the depositing of such substance on the stairway, but would arise because of failure to promptly remove the same after actual or constructive notice of its existence.There was here no showing of either.If it had been left there by one of defendant's employees, that fact would have been material in charging defendant with actual and immediate notice of its existence, if by some...