Opinion
No. 313.
Argued June 2, 1970. —
Decided June 26, 1970.
APPEAL from a judgment of the circuit court for Kenosha county: HAROLD M. BODE, Circuit Judge. Affirmed.
For the appellant there was a brief by Phillips, Richards Mayew of Kenosha, and oral argument by Charles J. Richards.
For the respondent there was a brief by Heide, Sheldon, Hartley, Thom Wilk, and William A. Sheldon, all of Kenosha, and oral argument by William A. Sheldon.
This is an appeal from a judgment of the circuit court for Kenosha county, branch II, entered on August 4, 1969. Following a motion for directed verdict, Judge HAROLD M. BODE granted the motion and dismissed the complaint of the plaintiff, Ivan Petroski, and awarded costs to the defendant, Eaton Yale Towne, Inc., Dynamatic Division. Appeal was taken by the plaintiff on the ground that the trial court erred in holding that a sidewalk upon which the defendant fell was not a "place of employment" under the Wisconsin safe-place statute.
It appears that on June 12, 1963, the plaintiff, Ivan Petroski, who was an employee of the defendant, Eaton Yale Towne, Inc., Dynamatic Division, in the city of Kenosha, tripped and fell on a public sidewalk which ran along the premises of the defendant corporation. Plaintiff had taken his lunch break and was heading for a nearby tavern.
The initial complaint was not framed in the terms of the safe-place statute, but alleged that the sidewalk was under the control of, and was maintained by, the defendant and alleged that the defendant was causally negligent in letting the walk deteriorate into a state of disrepair. There was evidence that there was a substantial defect in the sidewalk and that the plaintiff had stumbled and fallen, fracturing both wrists.
In oral argument it was stated without objection that, although it was indubitably a public way, the sidewalk was constructed within the street limits by Eaton Yale Towne and that, subsequent to its construction, the defendant company had kept it free of ice and snow. One of its maintenance employees testified that, during the prior winter, the blade of the snow-removal equipment struck on the uneven areas of the sidewalk. The city's commissioner of public works testified that the city had not maintained or repaired the sidewalk during the period from 1953 to 1963.
At the close of trial, defendant's counsel moved for a directed verdict on the grounds that the plaintiff had failed to prove negligence and that, in addition, the defendant had no duty in respect to a public sidewalk. The trial judge held that there was no evidence of negligence.
Although the safe-place statute was neither pleaded nor referred to at any time during the course of trial, the trial judge held the walk was not a place of employment under the safe-place statute and that, accordingly, the defendant had no obligation to either maintain or repair the walk.
Judgment was entered dismissing the complaint. The record reveals no evidence that any post-trial motions whatsoever were made by either party.
In the recent case of Wittka v. Hartnell (1970), 46 Wis.2d 374, 175 N.W.2d 248, a safe-place statute case, we held that, where a judgment was entered on a motion for directed verdict dismissing a complaint, appellate review of the alleged errors of the trial court would not be entertained as a matter of right where no post-trial motions with respect to the issues raised had been made prior to the appeal. We relied therein upon Jonas v. Northeastern Mut. Fire Ins. Co. (1969), 44 Wis.2d 347, 171 N.W.2d 185, which explicated the rule of Wells v. Dairyland Mut. Ins. Co. (1957), 274 Wis. 505, 80 N.W.2d 380. We pointed out therein that, in the absence of the required post-trial motions, we would entertain an appeal and decide the questions raised in this court only where a review of the record convinces us that there has been a miscarriage of justice or where the evidence adduced at trial and the applicable law clearly dictate that the appellant should have prevailed in the court below. We have carefully examined the record and, applying those standards, conclude that the case does not warrant our review and, accordingly, must be affirmed. In reaching that conclusion, we in fact decide the case upon the merits.
The plaintiff argues that Eaton Yale Towne, Inc., exercised sufficient control over the public walk to bring it within the rule of Schwenn v. Loraine Hotel Co. (1961), 14 Wis.2d 601, 111 N.W.2d 495. This case is clearly distinguishable from Schwenn. It is implicit in the briefs and explicit in the oral argument that the sidewalk was a public one and that, although the defendant performed the same duties that any abutting householder would perform in connection with snow removal, it asserted no dominion over the sidewalk nor did it attempt to control its use. This court in Schwenn distinguished the fact situation there from those of preceding cases in which the court held that a public sidewalk was not a place of employment. The case before the court is unlike Schwenn and like the cases that Schwenn distinguished, in that the sidewalk herein was used by the general public. We said in Schwenn at pages 606, 607:
"Cases cited by defendants to the effect that city streets and sidewalks are not places of employment are distinguishable on the ground that the premises in each case did not meet the statutory requisites of a place of employment in that they were used by the general public, precluding any control on the part of the employer."
In view of the undisputed evidence that this was a public sidewalk, which any pedestrian was free to use without let or leave of Eaton Yale Towne, it is clear that the interests of justice do not require a further review of the evidence. The sidewalk was clearly not a place of employment. See also: Miller v. Welworth Theatres (1956), 272 Wis. 355, 75 N.W.2d 286, which discussed the responsibility of an abutting property owner in regard to an abutting sidewalk, vis-a-vis, the duty of the municipality. That case recognized that, in a situation such as confronts the court herein, "there is no obligation on the abutting landowner to keep the sidewalk in front of his premises in repair or in a safe condition for public travel."
By the Court. — Judgment affirmed.