Schoenfeldt v. Babcock

• Decision Date: 02 March 1965
• Parties: Richard A. SCHOENFELDT, Individually and as Admr. of the Estate of Ella Schoenfeldt, Decd., Appellant, v. Edward V. BABCOCK et al., Respondents.
• Court: Wisconsin Supreme Court

Page 262

133 N.W.2d 262

26 Wis.2d 569

Richard A. SCHOENFELDT, Individually and as Admr. of the Estate of Ella Schoenfeldt, Decd., Appellant, v. Edward V. BABCOCK et al., Respondents.

Supreme Court of Wisconsin.

March 2, 1965.

Charles W. Sturm, Charles E. Nicoud and Charles Saggio, Milwaukee, for appellants.

Grootemaat, Cook & Franke, Milwaukee, Robert E. Cook and Francis R. Croak, Milwaukee, of counsel, for respondents.

GORDON, Justice.

The trial court granted a nonsuit at the close of the plaintiff's case, and we must determine whether such ruling was proper. Upon a motion for nonsuit, the evidence is to be viewed in a light most favorable to the plaintiff, and the plaintiff must also be given the benefit of the most favorable inferences which can be deduced from the evidence. Bartz v. Braun (1961), 14 Wis.2d 425, 427, 111 N.W.2d 431; City of Lake Mills v. Veldhuizen (1953), 263 Wis. 49, 51, 56 N.W.2d 491.

There are three principal matters which we will discuss: (1) Does the safe-place statute apply? (2) Was there a duty on the part of Mrs. Babcock to issue a warning to Mrs. Schoenfeldt? and (3) Was there negligence because the hall light was not shaded and was located so as to blind an invitee?

The appellant has pointed out that a presumption of due care attended the deceased Mrs. Schoenfeldt. However, the deceased's entitlement to a presumption of due care may not be translated so as to create a presumption of negligence on the part of the defendants. The nonsuit was not based on the extent of Mrs. Schoenfeldt's negligence, but, rather, it was based on the absence of adequate proof as to the Babcocks' negligence. Accordingly, no further discussion of this presumption is necessary in this opinion.

Another proposition advanced by the appellant relates to the liability of Edward Babcock. In view of our conclusion that his wife, Janis Babcock, was entitled to a nonsuit, it follows that Edward Babcock is also entitled to the benefit of such ruling. No useful purpose would be served by our exploring the question of his liability, since it is apparent that his liability rests on weaker grounds than of his wife. Applicability of Safe-Place Law.

The trial court determined that the safe-place law does not apply to the instant case, and we agree with this conclusion. The Babcock property was not a 'place of employment' within sec. 101.01(1), Stats. The statute describes such a place as one where 'temporarily or permanently any industry, trade or business is carried on' and 'where any person is, directly or indirectly, employed by another for direct or indirect gain or profit.'

The plaintiff offered no proof as to the frequency with which Mrs. Babcock carried on rummage sales at her home. Under the reasoning of Cross v. Leuenberger (1954), 267 Wis. 232, 65 N.W.2d 35, 66 N.W.2d 168, if this were a solitary sale or even an occasional event, it would not constitute a trade or business within the meaning of sec. 101.01(1), Stats.

The Cross Case, at page 235, 65 N.W.2d 35, also establishes that the statutory definition of a place of employment requires not only the conduct of a trade or business but also the employment of one person by another. The record is devoid of a showing that any person was employed by another in connection with the rummage sale. The fact that Mrs. Babcock testified that her husband and some friends were 'interested' in the rummage sale falls far short of showning the existence of employment.

The Failure to Warn.

Mrs. Babcock led the way as Mrs. Schoenfeldt followed her into the house. Mrs. Babcock said, 'Follow me,' but she did not caution her with reference to the physical arrangement of the platform and the basement stairs. The appellant contends that, as an invitee, Mrs. Schoenfeldt was entitled to a warning of an unsafe condition or a hidden periol and that the failure of Mrs. Babcock to give such warning was a factor which the jury could have held to constitute negligence.

The appellant relies upon Lehman v. Amsterdam Coffee Co. (1911), 146 Wis. 213, 131 N.W. 362, in which case the entrance to the stairway was surrounded by store merchandise which was piled to heights of three to four and one-half feet. The court observed, at page 216, 131 N.W. 362, that the piling of merchandise practically concealed the stairway from view. The court went on to state, at page 218, 131 N.W. at page 364:

'The rule is familiar that, where one invites another upon his premises, he cannot without warning leave a snare or trap there into which the invited person falls while exercising ordinary care, and escape liability therefor. Barowski v. Schulz, 112 Wis. 415, 88 N.W. 236. We should be slow to say that an ordinary open stairway or hatchway in the storage part of store could be called a trap or snare, even to an invitee. It is common knowledge that such places are very usual, and doubtless every person of full age should anticipate their existence, but the circumstances here are very much out of the ordinary. The stairway was surrounded on two sides with piles of merchandise as high of higher than the rail, and on one side by shelving. The evidence seems to be ample to show that in approaching it from the front of the store there would be no...