Prehn v. C. Niss & Sons, Inc.

• Decision Date: 05 December 1939
• Citation: 288 N.W. 736,233 Wis. 155
• Court: Wisconsin Supreme Court
• Parties: PREHN et al. v. C. NISS & SONS, Inc.

233 Wis. 155

288 N.W. 736

PREHN et al.

v.C. NISS & SONS, Inc.

Supreme Court of Wisconsin.

Dec. 5, 1939.

Appeal from a judgment of the Circuit Court for Milwaukee County; Gustave G. Gehrz, Judge.

Action by Sophia Prehn and another against C. Niss & Sons, Inc., for injuries received by the named plaintiff while she was a frequenter in the defendant's retail store. The action was dismissed in the civil court and from a judgment affirming the judgment of the civil court, the plaintiffs appeal.-[By Editorial Staff.]

Affirmed.

Action begun May 21, 1937 by Sophia Prehn and her husband, William Prehn, in the civil court of Milwaukee county for injuries received by Sophia Prehn while a frequenter in defendant's retail furniture store. The action was dismissed in the civil court and the judgment of that court was affirmed in the circuit court. From that judgment plaintiffs appeal.

Plaintiffs seek to recover for medical expenses, damages, and loss of service of the husband arising out of injury sustained by Sophia Prehn. The complaint is under the safe place statute, sec. 101.06, Stats. The case was submitted to the jury in the civil court where a verdict was returned assessing the damages of Sophia Prehn at $1,200 and of William Prehn at $600 and fixing the contributory negligence of Sophia Prehn at fifteen per cent. Sophia Prehn had attended a lecture given on the third floor of the defendant's store March 15, 1937. The injury sustained by her resulted from falling when her foot came in contact with the lecture platform. The platform was approximately four and one-half feet square and rose some eight inches above the floor. On the platform were a desk and a microphone for use in delivering the lectures. It appears that the plaintiff Sophia, during the lecture which covered an hour's time, was seated not more than ten feet from the platform. The platform is set apart from the other furniture or articles displayed, none of which were placed nearer to the platform than four feet. It stood plainly visible in a well-lighted room and the evidence shows the area around the platform to be free of objects.

There is a dispute as to how serious the injuries were. Medical testimony does not indicate permanent injuries. The plaintiffs base their appeal on the rulings of the court and assign as error the changing of the jury's answer to a certain question; the dismissing of the complaint, and holding as a matter of law that the defendant did not violate the safe place statute; and judgment that the defendant was not liable as an employer.

Mayer, Vandercook, Wilde & Rice, of Milwaukee (Walter F. Mayer, of Milwaukee, of counsel), for appellants.

Lines, Spooner & Quarles, of Milwaukee (Chas. B. Quarles and L. S. Clemons, both of Milwaukee, of counsel), for respondent.

FAIRCHILD, Justice.

[1][2] We agree with the courts below that a cause of action was not established. The judgment must be affirmed. It has not been shown that the defendant failed in the performance of any duty resting upon him as owner of a building or as an employer in furnishing a place as safe “as the nature of the employment, place of employment, or public...