Rieschl v. Wis. Mich. Power Co.

• Decision Date: 08 November 1940
• Citation: 236 Wis. 116,294 N.W. 521
• Parties: RIESCHL v. WISCONSIN MICHIGAN POWER CO. (GREENWOOD, Impleaded Defendant).
• Court: Wisconsin Supreme Court

236 Wis. 116

294 N.W. 521

RIESCHL

v.WISCONSIN MICHIGAN POWER CO. (GREENWOOD, Impleaded Defendant).

Supreme Court of Wisconsin.

Nov. 8, 1940.

Appeal from a judgment of the Circuit Court for Winnebago County; Henry P. Hughes, Judge.

Affirmed.

Action by Mary Rieschl against Wisconsin Michigan Power Company, a Wisconsin utility corporation, commenced March 27, 1939, to recover damages for personal injury sustained by her on February 25, 1939, while she was alighting from one of defendant's busses in the city of Neenah. From a judgment entered March 30, 1940, in favor of the plaintiff against defendant company in the sum of $1,248 damages and costs, defendant appeals.

Plaintiff alleges that there was an accumulation of ice on the step of the bus which caused her to slip and fall, resulting in her injury. Case was tried to the court and jury. The jury by its special verdict found (1) that there was a defect at the time in question in the step of the defendant's bus due to a formation of ice thereon; (2) that such defect was a proximate cause of the plaintiff's injury; (3) that defendant in the exercise of ordinary care ought to have known of such defective condition of the step in time to have prevented the injury to the plaintiff; (4) that defendant was guilty of a want of ordinary care in failing to remove such ice; (5) that plaintiff was guilty of a want of ordinary care which proximately contributed to produce her injury; (6) that defendant's negligence was 75 percent and plaintiff's 25 percent; and assessed plaintiff's damage's at $1,500.

The usual motions were made after verdict. All of defendant's motions were denied and judgment was accordingly entered in favor of the plaintiff against defendant for the sum of $1,248 damages and costs, from which judgment defendant appeals. The material facts will be stated in the opinion.

Shaw, Muskat & Paulsen, of Milwaukee, and Homer H. Benton, of Appleton, for appellant.

McKenzie & Fink, of Menasha (Drought & Drought, of Milwaukee, of counsel), for respondent.

MARTIN, Justice.

The only error relied upon by the defendant is the refusal of the court to grant defendant's motion to change the answer of the jury to question number three from “yes” to “no” and to enter judgment dismissing plaintiff's complaint on the merits. Defendant concedes that there is credible evidence to sustain the jury's finding as to the first and second questions of the special verdict, that is, that there was a defect at the time in question in the step of defendant's bus due to the formation of ice thereon, and that such defect was a proximate cause of the plaintiff's injury. But defendant contends that there is no evidence that the defect in the step of the bus had existed for such a period of time as to give defendant a reasonable opportunity to discover same and remove it. This necessitates a review of the facts.

It appears that the bus in question was equipped with a folding door which is kept closed while the bus is in motion. The door is located on the right side of the bus near the right front corner opposite the operator's seat, the bottom of the door being flush with the surface of the first step when closed. Upon entering, passengers step from the ground onto the step, about thirteen inches, and then onto the floor of the bus, the floor of the bus thus constituting the top step. The step is made of steel, is stationary, and is on the inside of the bus.

The bus came into defendant's garage about 12:30 A. M. on the morning of February 25, 1939, where it was swept and cleaned, and its steps were cleaned so that when it was taken out at 5:45 A. M. there was no snow or ice on the bus or its steps. During the night the temperature was four degrees below zero while inside the garage it was not lower than 65 degrees. The bus left Appleton at 6 A. M. on its regular trip to Neenah, back through Appleton to Kaukauna, and then back to Appleton again where it started its second trip to Neenah at 8 A. M. Plaintiff, who lives at Menasha, had boarded the bus at a street corner near her home at about 8:23 and arrived at Neenah about 8:30 A. M. at which time and place she sustained her injury. There is no testimony as to the number of passengers the bus carried on either its first or second trip. There is testimony to the effect that when the bus stopped at Neenah at the place where plaintiff got off, that about fifteen passengers preceded her in leaving the bus and a few got off after her. The bus was at a standstill as the passengers got off. It was a clear cold morning; there had been no snow during the night. The temperature at this time was about zero.

[1] We must accept the fact...