Mullen v. Reischl

• Decision Date: 03 May 1960
• Citation: 103 N.W.2d 49,10 Wis.2d 297
• Parties: Shella MULLEN, Appellant, v. Ludwig REISCHL, Respondent, Ernst R. Mertins et al., Interpleaded Defendants.
• Court: Wisconsin Supreme Court

Page 49

103 N.W.2d 49

10 Wis.2d 297

Shella MULLEN, Appellant, v. Ludwig REISCHL, Respondent Ernst R. Mertins et al., Interpleaded Defendants.

Supreme Court of Wisconsin.

May 3, 1960.

John R. Craite, Roland J. Steinle, Jr., Milwaukee, for appellant.

Cape & Schellinger, Stanley F. Schellinger, James G. Doyle, Milwaukee, of counsel, for respondent.

CURRIE, Justice.

The issues raised on this appeal by the appellant plaintiff are as follows:

(1) Is there any credible evidence to sustain the finding of the jury with respect to the contributory negligence of the plaintiff?

(2) Was the negligence of the defendant Reischl as a matter of law greater than that of the plaintiff?

(3) Is there credible evidence to sustain the jury's findings of causal negligence because of the tampering with the boards covering the stairwell on the part of the impleaded defendants Mertins?

(4) Was it error for the trial court to grant a non-suit as to the cause of action grounded upon the Safe Place Statute? Stats. §§ 101.06, 101.07.

In view of the fact that the defendant Reischl won the verdict below we must consider the evidence from the standpoint most favorable to defendant. Henthorn v. M. G. C. Corp., 1957, 1 Wis.2d 180, 184, 83 N.W.2d 759. Therefore, in reviewing the evidence, it is only necessary to set forth those parts that sustain the verdict, although there may have been other testimony in the record which contradicted the same.

The premises where the accident occurred on December 9, 1955, consisted of a farmhouse near Mukwonago in Waukesha county which had been remodeled so as to have three living apartments. At the time of the accident one of such apartments was occupied by the impleaded defendants, Mr. and Mrs. Mertins, and another was occupied by a Mr. and Mrs. Kranz and their children.

The plaintiff was a divorcee, thirty years of age, who had a twelve year old son who for some years had been boarded by Mr. and Mrs. Mertins. Such son had been placed in the Mertins' home by Children's Service of Milwaukee, a child welfare agency.

The Mertins had owned the premises for several years but on October 18, 1955, they entered into a written contract for the sale of such premises to the defendant Reischl. Before such sale there had been an old shed approximately 15 X 30 feet attached to the rear of the building, which shed enclosed both the rear door of the Mertins' apartment and an open stairwell leading down into the basement. There was also an inside stairway by which the basement could be reached. The Mertins had torn down such old shed and were in the process of erecting a new addition to replace it when such contract of sale was entered into on October 18th. A foundation wall of stone and concrete blocks for the new addition had been built and joists had been laid across the same to support a floor. Reischl was dissatisfied with such joists because they were uneven and made of old lumber. He employed one Judeus, a carpenter, to construct the new addition under his (Reischl's) direction.

In the course of such construction the old joists were ripped out and new joists installed 16 inches apart. The new addition was approximately 12 feet wide and 20 feet in length, and the joists were laid across the narrower of the two dimensions, so that they were parallel with the length of the stairwell opening which was some 3 1/2 to 4 feet wide. Pursuant to the request of the Mertins, the joist which was to run lengthwise across such stairwell opening was temporarily omitted in order that the Mertins might later remove their deep freezer from the basement because it was too large to take out through the inside stairway. In installing the floor across the joists, temporary boards some 5 feet in length were laid crosswise across the stairwell, and one nail was placed at the end of each board so as to temporarily nail such boards in place. These boards were 6 or 8 inches wide. Some were 2 inches thick and some 1 inch thick, but those 1 inch thick were laid double. Judeus weighed approximately 220 pounds and stated that such temporary boards when in place were strong enough to support his weight.

By November 14, 1955, Judeus had completed the work for which he was employed. The outside walls of the addition were covered with sheathing, the roof boards were on, and three windows complete with window glass were installed. There was also installed an outer door on hinges and equipped with a doorknob, which temporarily was nailed shut with two nails. There was no step installed leading to such door and the door sill was some 22 inches above ground level. There was still work to be done to complete the addition and it presented an unfinished appearance.

Mrs. Mertins testified that she removed one of the boards over the stairwell in order to run a hose from the basement up through the stairwell and out through the outer door of the addition. Such hose was used by her on washdays once each week in order to drain water out of the basement.

Reischl returned to the premises about November 18th and found that the nails had been removed from some of the boards covering the stairwell and that the nails had been removed from the outer door. He again temporarily nailed down the boards over the stairwell and nailed the outer door shut. Reischl did not go to the premises again until after the plaintiff had incurred her accident on December 9th.

There is some conflict in the testimony whether the Kranz family, the other tenants in the main dwelling, used the outside stairwell after October 18, 1955. Neither Mr. nor Mrs. Kranz was called as a witness. Mr. Mertins testified positively that the Kranz family never used the outside stairwell after October 18th. Reischl testified that shortly before December 8th the tenant Kranz complained that the Mertins would not permit the former to use the inside stairway leading to the basement. Mrs. Mertins denied that such permission had been refused and stated that the Kranzes continued to use the inside stairway right up to December 8th.

On December 8, 1955, Mr. Reischl and the Mertins met at a real estate office in Milwaukee for the closing of the sale of the premises from the Mertins to Reischl at which time a deed was executed and delivered from the former to the latter. In connection with such real estate closing, the Mertins deposited $250 in escrow to insure their removal of certain personal property, junk, and rubbish from the property. The written escrow agreement contained an express clause whereby the Mertins agreed to permit the tenant Kranz to enter the basement through the inside stairway. This provision was inserted because of the complaint Reischl had received that the Mertins had denied use of such stairway to Kranz.

On the afternoon of December 9, 1955, plaintiff made a trip by automobile from Milwaukee to the premises in question in order to call for her son at the Mertins' apartment and take him with her for the weekend. She arrived at the premises about twenty minutes to four. She went to the front door of the Mertins' apartment, knocked several times, and called out but no one came. Then she proceeded to the rear of the building and noticed the door leading into the new addition. She turned the doorknob of such door, entered, and attempted to cross the floor of such addition in order to gain entrance to the Mertins' apartment through the kitchen door thereof which opened into such addition. In doing so she stepped on the...