Uhrman v. Cutler Hammer, Inc.

• Decision Date: 05 November 1957
• Parties: Joseph UHRMAN et al., Respondents, v. CUTLER HAMMER, Inc., a Wis. Corp., Appellant.
• Court: Wisconsin Supreme Court

Page 772

85 N.W.2d 772

2 Wis.2d 71

Joseph UHRMAN et al., Respondents, v. CUTLER HAMMER, Inc., a Wis. Corp., Appellant.

Supreme Court of Wisconsin.

Nov. 5, 1957.

Quarles, Spence & Quarles, Milwaukee, Clayton R. Hahn, Milwaukee, of counsel, for appellant.

Hayes & Hayes, Milwaukee, for Uhrman.

George D. Young, Milwaukee, for Ins. Co., Theodore, L. Priebe, Milwaukee, of counsel.

WINGERT, Justice.

The defendant-appellant challenges the trial court's findings that (1) the premises were not as free from danger as the nature of the employment would reasonably permit, (2) defendant had actual or constructive notice of such unsafe condition, and (3) plaintiff Uhrman was free from negligence in respect to the damage incurred by him. Our conclusion is that all of the findings have adequate support in the evidence, and that there was no error in rendering judgment for the plaintiff.

1. Place unsafe. The area where the accident occurred was a place of employment and plaintiff was a frequenter thereof. Sec. 101.06 Stats. required the place to be 'safe' for frequenters. 'Safe' means 'such freedom from danger * * * as the nature of the employment, place of employment, or * * * will reasonably permit.' Sec. 101.01(11) Stats.

The testimony of Uhrman is undisputed, that the ramps were nested against the wall, with the thin end on the ground, that they were three feet from his truck, that he did not bump them or touch them and that he had 'lots of room there.' The trial court's written decision shows that he believed that testimony. It is not so inherently incredible that we can say the court was wrong.

In that situation, the case is ruled by Peschel v. Klug, 170 Wis. 519, 175 N.W. 805, where three large timbers were piled at the side of an alley, and one of them fell on plaintiff's leg as plaintiff was standing beside them. In reversing a directed verdict for the defendants, this court said '* * * The timbers were piled on the margin of the alley by the defendants in the prosecution of their business, and were in their care. It was their duty under the statute to so pile them that the alley could be safely used in the usual and ordinary manner by their employes and other frequenters. If the timbers fell on such an employe, or frequenter without the application of force or violence, that fact itself would necessarily be evidence of unsafe piling. There was evidence, which cannot be said to be incredible, that such was the case here; hence the question as to whether the timbers were piled in such an insecure way that they fell on the plaintiff in obedience to the laws of gravitation, and without other or adequate cause was a question for the jury.' 170 Wis. at page 522, 175 N.W. at page 806, italics ours.

So here, the undisputed evidence that the ramps fell on Uhrman without his having bumped them warranted the court in finding that they were stacked in an unsafe way. From the description of the ramps and loading dock, and in the absence of any evidence to the contrary, the court could also properly find that the nature of the place and employment would have permitted a safer placement of the ramps.

2. Notice to the employer. The finding that defendant had actual or constructive notice of the unsafe condition presents a closer question. Such notice is an essential element of liability to a frequenter. Williams v. International Oil Co., 267 Wis. 227, 230, 64 N.W.2d 817.

Constructive notice of course is neither notice nor knowledge, but a mere shorthand expression. We say a person has constructive notice of something when for the promotion of sound policy or purpose he is to be treated as if he had actual notice, whether or not he had it in fact. Schoedel v. State Bank of Newburg, 245 Wis. 74, 76, 13 N.W.2d 534, 152 A.L.R. 459. In the present case we think the evidence was sufficient to warrant the trial court in placing defendant in that category with respect to the unsafe stacking of the ramps.

The ramps were frequently used. The loading dock was a busy place, and trucks were in and out all day. At least one of defendant's trucks used the ramps almost daily, and visiting trucks of other operators also used them whenever necessary to bring the level of the truck bed to that of the loading platform. Defendant's warehouse employees asked the truck drivers to stand the ramps against...