Opinion
November 1, 1961 —
November 28, 1961.
APPEAL from a judgment of the circuit court for Kenosha county: M. EUGENE BAKER, Circuit Judge. Affirmed.
For the appellant there was a brief and oral argument by Maurice Schmerling of Kenosha, attorney, and N. Paley Phillips of Milwaukee of counsel.
For the respondent Golden Bell Dairy there was a brief by Whaley Whaley of Racine, and oral argument by John W. Whaley and Vilas H. Whaley.
For the respondent American Surety Company of New York there was a brief by Phillips Richards of Kenosha, and oral argument by David L. Phillips.
Action to recover damages for personal injuries sustained by the plaintiff as a result of falling down some steps in her own home.
The plaintiff and her husband lived in the lower floor of the dwelling and their son and his wife lived in the upper floor thereof. The defendant dairy delivered milk to each family. On January 1, 1959, sometime between 7:30 and 9:30 a.m., a driver for the dairy company delivered milk to both families. The night before there had been a heavy snow. The driver parked his milk truck on the street in front of plaintiff's home and walked about 25 feet to a door of the house. Upon entering the doorway there was a landing from which steps led to the basement and also upward six steps to the kitchen door of the lower apartment. Opposite the kitchen door was a second landing from which stairs led to the upper apartment. Milk for the second floor was placed upon one of those steps. The driver wore boots with his trousers over the boots. He tracked snow upon the stairs and landing. As he was leaving, the plaintiff opened her door and wished him a Happy New Year. He returned the greeting and left. Plaintiff knew what the weather and snow conditions outside were at the time of the milk delivery. When the plaintiff exchanged greetings with the driver she noticed snow on his boots and that they were wet.
About five minutes after the driver left, the plaintiff started down the stairs to take some empty bottles to the basement. There were no handrails on either side of the stairway. The area was well lighted. Plaintiff was wearing house slippers with soles but no heels. Plaintiff fell on the second step below the landing leading to her apartment. She testified that she did not remember on what she fell but that after the fail she saw water on the steps where she fell.
The action was brought against the dairy company. On motion of the defendant the American Surety Company of New York was impleaded as a defendant. The surety company was liability insurer of the milk truck used at the time of the delivery and was made a defendant because of possible coverage under its policy. That matter was not determined by the court.
At the close of the testimony both defendants moved for a directed verdict dismissing the complaint on the ground that there had been produced no proof of any negligence on the part of the driver that would support such a finding by the jury. The motion was granted, and on November 9, 1960, judgment was entered dismissing the complaint against both defendants upon the merits. with costs. The plaintiff appealed.
The complaint alleged that the negligence of the driver consisted of failing to shake the snow from his boots before he entered the premises, thus allowing slush and snow to drip off his boots on the steps, making them slippery and unsafe; and that he failed to warn the plaintiff of the dangerous condition thereof.
In ruling upon the motion for a directed verdict it was the duty of the trial court to view the evidence in the light most favorable to the plaintiff. It was then its duty to apply the rule laid down by this court in the following language:
"A verdict may properly be directed only when the evidence gives rise to no dispute as to the material issues or only when the evidence is so clear and convincing as reasonably to permit unbiased and impartial minds to come to but one conclusion." Rusch v. Sentinel-News Co. (1933), 212 Wis. 530, 533, 250 N.W. 405; Thoni v. Bancroft Dairy Co. (1949), 255 Wis. 577, 579, 39 N.W.2d 690; Wadoz v. United Nat. Indemnity Co. (1957), 274 Wis. 383, 390, 80 N.W.2d 262.
The trial court referred to the definition of negligence found in Osborne v. Montgomery (1931), 203 Wis. 223, 234 N.W. 372, and to the following quotation from Barnes v. Murray (1943), 243 Wis. 297, 302, 10 N.W.2d 123:
"`Negligence in law is not mere carelessness, but is careless conduct under such circumstances that an ordinarily prudent person would anticipate some injury to another as a reasonably probable result thereof.' Johanson v. Webster Mfg. Co. 139 Wis. 181, 184, 120 N.W. 832."
After reviewing the authorities the trial court stated that there was no contractual or statutory duty on the part of the driver with reference to bringing snow into the dwelling when delivering milk. It was stated that the driver's duty at common law is not to stamp his feet to remove snow but only to use ordinary care to see that an act or omission will not unreasonably expose another to risk of harm, which involves the element of foreseeability. The trial court felt that a reasonably prudent person would not foresee that tracking snow into the vestibule and onto the steps would thereby expose the interests of another to an unreasonable risk of harm. The court felt, therefore, that the only question was whether or not there was a duty on the part of the driver to warn the plaintiff of the presence of the snow. Since the plaintiff had seen the snow upon the boots and that they were wet, there was no duty to warn against a condition that was observed and that might readily be observed by use of the senses. The very situation was a warning in itself. Although not referred to by the trial court, the record is clear that the hallway and stairs were well lighted and the condition of the steps could readily have been seen by the plaintiff.
The slippers were not made an exhibit. There is no description of them other than as stated above, nor of how well they fit. After plaintiff fell a slipper was on her left foot, but the right one had come off. There is no testimony that either slipper was wet immediately after the accident. There is no evidence in the record as to how or why plaintiff fell.
The plaintiff cites some cases indicating that a person is not bound absolutely to see every defect in his pathway and that forgetfulness of danger does not always show want of ordinary care. These cases deal with the contributory negligence of the plaintiff. Had the driver warned the plaintiff and had she forgotten the warning, the driver would have complied with every duty on his part and plaintiff's forgetfulness would go only to her contributory negligence. Also, plaintiff's failure to see a plainly observable defect would not go to the negligence of the driver but rather to the question of contributory negligence on the part of the plaintiff.
The trial court viewed the evidence most favorable to the plaintiff, it had the proper rules of law in mind, and concluded that the plaintiff had failed to produce sufficient proof to raise a jury issue as to the negligence of the driver. We have reviewed the record and can only conclude that the trial court was correct in granting the motion for a directed verdict. To have submitted questions of negligence and causation on the part of the driver to a jury would have been asking the jury to determine the same from mere conjecture. That would have been improper. Larson v. Splett (1954), 267 Wis. 473, 66 N.W.2d 181.
By the Court. — Judgment affirmed.