Stark v. Joseph Schlitz Brewing Co.

• Decision Date: 01 February 1910
• Citation: 141 Wis. 453,124 N.W. 491
• Parties: STARK v. JOSEPH SCHLITZ BREWING CO.
• Court: Wisconsin Supreme Court

141 Wis. 453

124 N.W. 491

STARK

v.JOSEPH SCHLITZ BREWING CO.

Supreme Court of Wisconsin.

Feb. 1, 1910.

Appeal from Circuit Court, Milwaukee County; W. J. Turner, Judge.

Action by George Stark against the Joseph Schlitz Brewing Company. From a judgment of nonsuit, plaintiff appeals. Affirmed.

Among other references upon the part of the appellant were the following: Dorsey v. Phillips, etc., Co., 42 Wis. 583;Olson v. Doherty L. Co., 102 Wis. 264, 78 N. W. 572;Hazen v. West Sup. L. Co., 91 Wis. 208, 64 N. W. 857;Dugal v. Chippewa Falls, 101 Wis. 533, 77 N. W. 878;Campshure v. Standard, etc., Co., 137 Wis. 155, 118 N. W. 633;Leque v. Madison G. & E. Co., 133 Wis. 547, 113 N. W. 946;Bessex v. C. & N. W. R. Co., 45 Wis. 477;Bright v. Barnett R. Co., 88 Wis. 299, 60 N. W. 418, 26 L. R. A. 524;Hupfer v. Nat. D. Co., 114 Wis. 279, 90 N. W. 191;Huber v. La Crosse City Ry. Co., 92 Wis. 636, 66 N. W. 708, 31 L. R. A. 583, 53 Am. St. Rep. 940;Yerkes v. Northern Pac. R. R., 112 Wis. 184, 88 N. W. 33, 88 Am. St. Rep. 961;Crites v. New Richmond, 98 Wis. 55, 73 N. W. 322;Hocking v. Windsor S. Co., 125 Wis. 575, 104 N. W. 705;McDougall v. Ashland S. F. Co., 97 Wis. 382, 73 N. W. 327.

Among other references upon the part of the respondent were the following: Fisher v. Town of Franklin, 89 Wis. 42, 61 N. W. 80;McGinn v. French, 107 Wis. 54, 82 N. W. 724;Prideaux v. Mineral Point, 43 Wis. 513, 28 Am. Rep. 558;Stackman v. C. & N. W. Ry. Co., 80 Wis. 428, 50 N. W. 404;Kraeft v. Mayer, 92 Wis. 252, 65 N. W. 1032.Rubin & Zabel, for appellant.

Miller, Mack & Fairchild, for respondent.

TIMLIN, J.

The defendant brewing company contracted with one Toepfer for the construction by the latter of a large upright iron tank extending from some feet below the basement floor through the basement ceiling and floor of the room above. This necessitated the cutting of a somewhat circular hole through said ceiling and floor larger than the tank and leaving an open space around the circumference of the tank. On this upper floor employés of the respondent were engaged in a process called “pasteurizing” beer for bottling. In this operation bottles were frequently broken, and in the progress of their work the employés threw this broken glass into a box resting on this upper floor near the opening aforesaid. When the box was filled with broken glass, it was removed, emptied, and replaced for the further reception of broken glass. The appellant, an employé of Toepfer, was engaged in heating and fitting rivets into the tank in process of construction. Toepfer and his men were in the basement and working on the tank by invitation of the respondent. The representative of the respondent was notified by Toepfer or some one representing him not to let this broken glass down on Toepfer's workmen. While the plaintiff was standing on a plank in the basement engaged at work, some of this broken glass came down through the opening aforesaid, fell on his bare arms and cut them, caused him to drop off the plank, and thereby to sustain personal injuries. Although twice excluded by rulings of the trial court, the plaintiff finally succeeded in getting in without objection testimony on his part that immediately after the accident he went up on the other floor looking for respondent's superintendent or foreman, found a boy there, showed the boy his bleeding arm, and the boy said, “The bottle--I couldn't hold the bottle, it exploded on me, and I threw it.” The court below ordered a judgment of nonsuit.

This case is presented by both appellant and respondent largely as if it involved the question of an unsafe place and the duty of the owner of the premises toward one on his premises by invitation under such circumstances. That does not appear to us to be the question in the case. The premises were not unsafe as to the plaintiff, nor was the plaintiff injured in consequence of any omission on the part of the owner in that regard. Where, without the intervention of some responsible negligent human agency, no injury can befall the invitee merely from the condition of the premises or the ordinary conduct of the...