Potter v. Schleck
| Decision Date | 05 January 1960 |
| Citation | 100 N.W.2d 559,9 Wis.2d 12 |
| Parties | George T. POTTER et al., Respondents, v. Leo P. SCHLECK, Appellant. |
| Court | Wisconsin Supreme Court |
Aberg, Bell, Blake & Metzner, Charles P. Seibold, John F. Stumreiter, Madison, for appellant.
Don F. Meloy, Franklin Hall, Madison, for respondent.
1. Order denying summary judgment. Defendant based his motion for summary judgment principally on a provision in the lease between defendant and plaintiff. Because the verdict supports the judgment in favor of defendant, and we reach the conclusion that the circuit court properly permitted the verdict to stand, it is unnecessary to consider the questions raised by defendant's appeal from the order denying his motion for summary judgment, and that appeal will be dismissed as moot. For the purpose of taxation of costs, defendant will be considered the prevailing party.
2. Support for jury finding of no ice where plaintiff fell. Plaintiff claimed that he fell because he slipped on a strip of ice which lay across the sidewalk opposite the downspout. There is a conflict in the evidence as to (a) whether there was any ice opposite the downspout, and (b) whether he fell opposite the downspout. The jury's negative answer to the first question would result from a negative finding upon either, or both of the propositions just mentioned.
Exhibit 33 is a photograph showing the area where plaintiff fell, although taken at a different season.
The downspout is attached to the west wall of the apartment building at the southwest corner. It discharges water onto a concrete splash block which runs south to the public sidewalk. The splash block is four and nine-tenths feet from north to south, and is one and three-tenths feet wide. Four and eight-tenths feet west of the west edge of the splash block is a concrete private walk, which runs north and south, and joins the public sidewalk at right angles. The private walk is three feet wide. From approximately one to three feet east of the splash block, there are some slightly raised patches of rough concrete on top of the sidewalk. There is a window in the south wall of the building with its west edge a little distance, perhaps four feet from the southwest corner. It is undisputed that when water is discharged from the downspout, the elevations and construction of the splash block and sidewalk are such that water will pond to some extent on the sidewalk.
Mr. Potter fell at about 6:30 a. m. Just previously, he was walking toward Jean street on the private walk, turned to his left (east), and walked a few steps on the public sidewalk to the place where he fell. After he fell, he felt ice on the walk with his hand. Several witnesses called by plaintiff testified that shortly after the fall, or later that day, they saw a patch of ice on the sidewalk, stretching across it and immediately opposite the downspout. Defendant testified that he examined the area at two o'clock that afternoon, and there was no ice. The maximum temperature that day was 13 degrees, and there were 24 minutes of sunshine. Each party called a witness who was permitted to state his opinions based on temperature, precipitation, and other weather data for several weeks before December 20th bearing upon the probability of ice forming on the sidewalk from water collected on the roof, and deposited by the downspout. Taking all the evidence together, there was a jury question as to the presence of ice.
Mr. Potter testified at one time that he took 'a couple steps', and at another time, 'either 4 or 5' steps from the private walk to the place where he fell. A Mr. Ayen said that Potter took three, four or five steps, but also testified that Potter fell opposite the downspout. Mr. Ayen saw Mr. Potter from the other side of the street, but not directly across it. A Mrs. Lundy, who lived in the corner apartment, looked out her window after Mr. Potter had fallen, and saw him in a crouching position 'just opposite' her window. It was shown that Mr. Potter's steps were somewhere between two and three feet in length, and that he walked with a shuffle. If he took five steps at two feet per step, he was seven to ten feet east of the private walk, and one to four feet east of the splash block. If Mrs. Lundy meant she saw him in a line perpendicular to her window, he was four feet or more east of the splash block when she saw him. All this evidence taken together raised a jury question, whether Potter fell opposite the downspout, or farther east, perhaps in the area where the raised rough concrete was on top of the sidewalk.
The first question in the special verdict was submitted in the form requested by plaintiff, and he makes no complaint as to its form. It is clear that the jury's negative answer was sustained by evidence.
3. Inconsistency. Plaintiff asserts that the answer finding there was no accumulation of ice where he fell is inconsistent with the finding that plaintiff was not negligent. We do not agree. Plaintiff was elderly. It was somewhat dark. The jury may have decided that he fell where the sidewalk had rough concrete upon it. There was evidence that plaintiff suffered from Meniere's disease off and on after 1944; that vertigo is one of the symptoms of the disease, and that it may cause a fall, although several people who knew plaintiff testified that they had not known of any other instances where he had fallen.
4. Instructions. Plaintiff believes that the jury's unfavorable answer to the first question may have resulted from instructions which imposed too heavy a burden of proof. The court instructed the jury that 'before you are justified in answering the question 'yes', you must be satisfied or convinced. * * *', etc. The phrase 'satisfied or convinced' was used several times. Plaintiff correctly points out that the word 'convinced' does not appear in an instruction previously approved by this court on various occasions. Bursack v. Davis, 1929, 199 Wis. 115, 121, 225 N.W. 738; Bengston v. Estes, 1951, 260 Wis. 595, 598, 51 N.W.2d 539. Plaintiff contends that the word 'convince' requires the jury to reach...
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