Rausch v. Buisse
Decision Date | 16 December 1966 |
Citation | 33 Wis.2d 154,146 N.W.2d 801 |
Parties | Roy Frank RAUSCH, Jr., Appellant, v. Charles BUISSE, Respondent, Wisconsin Natural Gas Co., a Wisconsin corporation, Defendant. |
Court | Wisconsin Supreme Court |
Lucien J. Piery, Kenosha, Heft, Coates, Boggs & Heft, Racine, for appellant.
Kivett & Kasdorf, Milwaukee, Alan M. Clack and Richard Schulz, Milwaukee, of counsel, for respondent.
The issues presented by this appeal fall into two categories:
First, what duty was owed by the sewer contractor to the plaintiff?
Second, were the trial judge's rulings concerning the admission or exclusion of evidence erroneous so that the appellant is entitled to a new trial?
In the trial court's view the duty placed upon the defendant was restricted to requiring the contractor to warn as regards the protruding manhole. When the jury found that the plaintiff did not strike the manhole that disposed of the case. The learned trial court, we conclude, correctly rejected any further theory of imposing a duty on the defendant that could give rise to negligence.
What other duty was imposed on the contractor? Appellant contends an additional duty was imposed by contract. He attempts to establish a duty on the part of the defendant to warn against all obstructions on 45th street in the area of the accident. Plaintiff's first theory for establishing this duty on defendant is based upon the contract between defendant and the city. This contract requires defendant to 'put up and maintain at his own cost, such barriers as will protect the public from all danger in any manner connected herewith, and that during the night time he will put up and maintain a sufficient number of red lights to give warning of danger.' A duty may be imposed on a person by a contract and nonperformance of this duty created by the contract may constitute actionable negligence. 1 The issue thus becomes whether the contract required the defendant to maintain barricades and warning lights on 45th street on the date of the accident.
The contract imposes the above duty 'during the construction of said sewers and until the completion of each and every one of said sewers.' The contract involved the construction of several sewers and manholes throughout the city of Kenosha. The plaintiff argues that the defendant had a duty to put up barricades and lights during the night time and had a duty to continue doing so until the contractual work was accepted as a whole. The trial court refused to accept this construction of the contract, ruling that the duty was imposed during the progress of the work at each particular site, and terminated at that site upon completion of the sewer and manhole there.
Sec. 27.8 of the specifications supports the trial court's ruling. This section says:
(Emphasis added.)
Once a job is completed at a particular site, a contractor generally removes equipment when he moves on to construction at another site. Otherwise a great number of warning devices would be needed in order to place a warning device at each job site (whether completed or not) under a contract. Imposing a continuing obligation on the contractor for accidents at a job site where work has been completed until completion of all jobs under the entire contract is too burdensome, and unless the wording is much more explicit than here, would not be part of the intention of the parties to the contract.
Plaintiff's second theory for imposing a contractual duty on the contractor to provide barricades and warning devices on 45th street, is that the work had not been completed at the job site so that the contractual duty on 45th street remains upon defendant. The trial court rejected this contention. All testimony indicated that the work had been completed several days prior to the accident. Defendant's foreman testified that the work was completed and the grade was reestablished level with the manhole by backfilling 10 to 12 days before the accident. Plaintiff argues that the duty to grade imposed by the contract refers to grading the whole street, thereby making defendant responsible for the condition of the whole street. The trial court correctly confined the duty to grade to the trenches and to the area around the manhole. The contract and specifications regarding the fill and grading of the trenches support this interpretation. Thus the work at this job site was completed and no further duty upon the defendant remained, except in regard to the improper protrusion of the manhole.
Plaintiff also asserts that a duty is imposed upon the defendant under the safe-place statute (sec. 101.06, Stats.). This statute requires that certain precautions must be taken by an employer at a place of employment. Defendant, however had completed his work on 45th street. Once work on a street project has terminated it is no longer a place of employment. 2 Thus a duty cannot be imposed upon defendant via the safe-place statute because of the absence of a place of employment.
Thus, the trial court was correct in limiting defendant's duty to this appellant to the protruded manhole.
At the trial the jury was asked:
'Did the plaintiff, Roy Frank Rausch, Jr., strike the manhole installed by the defendant, Charles Buisse?'
With two dissents it answered 'No' thus, in the opinion of the trial court, deciding the case.
This question was evidentiary in form like the one approved in the case of Fehrman v. Smirl. 3 Fehrman was a medical malpractice case, and during the trial the evidence only concerned injury to the external sphincter. The plaintiff was attempting to use this evidence to show the negligence of Dr. Smirl and our court stated it would recommend (at a new trial) submitting the question whether Fehrman's external sphincter was injured in the course of the first or second operation, or the postoperative care. A 'no' answer by the jury to this question would be determinative of the case. 4
Similarly, in the case at bar the trial court believed that the plaintiff's recovery of damages hinged upon a finding that plaintiff actually struck the manhole constructed by the defendant. The trial court's basis is that the defendant's duty toward the plaintiff was restricted to warning of the protruding manhole. The trial court explicitly rejected plaintiff's attempts to broaden the duty of the defendant. The existence of a duty between two parties and the scope of such duty are pure questions of law to be decided by the judge. 5
Appellant argues that questions of negligence and causation were not determined by the special verdict formulated by the trial court. Once the judge determines that no duty exists, no finding is necessary on the other elements of a case in tort. 6
Assuming the limited duty imposed on defendant, appellant contends that there was error on trial that warrants a new trial.
Appellant asserts that the trial judge erroneously excluded some of his questions. The following are examples taken from the questioning:
'Q. State whether or not you noticed any manholes in the street near the house?
'Mr. Clack: I object as leading, your honor.
'Court: Objection sustained.
'Q. What, if anything, did you see in the street near the white house you have described?
'A. Like I say, that road looked like a grader went through there and there was a manhole sticking up.
'* * *
'Q. State whether or not you noticed any barricades in the area of the manhole?
'Mr. Clack: I object as leading, your honor.
'Court: Objection sustained.
'Q. What, if anything, did you see around the manhole?
'A. There were no barricades whatever.
'* * *
'Q. And what, if anything, did you notice in reference to barricades at the intersection of 26th Avenue and 45th?
'Mr. Clack: I object as being leading and suggestive, your honor.
'Court: Objection sustained.
'Q. What, if anything, did you notice at the intersection of 26th Avenue and 45th Street?
Regardless of the rulings on these questions others immediately were asked that brought out the desired answers. If there was any abuse of discretion, 7 which we doubt, there was no prejudice. 8
Plaintiff also claims error in rejecting the testimony of two witnesses who observed a single tire track made by a two-wheeled vehicle on 45th street. The time of the observation was 10 o'clock Sunday morning. The trial court rejected this evidence because of the six-hour time difference, because the motorcycle was removed and there was no tieup of the tire track to the motorcycle, and because several policemen investigating the accident were unable to find any tire tracks.
Rejection of evidence because of remoteness rests in the trial court's discretion. Remoteness in point of time does not necessarily render evidence irrelevant but it may do so where the lapsed time is so great as to negative all rational or logical connection between the fact sought to be proved and the remote evidence offered in proof thereof. 9 Thus, the six-hour time lapse between the accident and the witnesses' observation supports the trial court's ruling. The fact that more competent evidence not so remote as to time or place was offered also supports the trial court's decision. 10 Moreover,
'The general rule is that testimony as to tire marks on the highway is admissible in civil actions for injury or damage, where a sufficient foundation therefor is laid by the showing, for example, that the condition of the road...
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