Opinion
February 6, 1962 —
March 6, 1962.
APPEAL from a judgment of the circuit court for Kenosha county: M. EUGENE BAKER, Circuit Judge. Affirmed.
For the appellants there were briefs by Mittelstaed, Heide, Sheldon Hartley of Kenosha, and oral argument by William H. Sheldon.
For the respondent there was a brief by Moore Moore of Milwaukee, and oral argument by Raymond J. Moore.
This is an action by Barbara Raim, a minor, by W. A. Sheldon, her guardian ad litem, against Mario Ventura, a cheese-market owner and operator. The plaintiff seeks to recover damages for personal injuries sustained by her when a plate-glass entrance door of the defendant's cheese market shattered after she struck it with her head. James Raim, Barbara's father, joined in the action against Ventura to recover damages for his daughter's hospital and medical expenses.
The complaint alleged a violation by Ventura of sec. 101.06, the safe-place statute. Huber Glass Company was made an impleaded defendant at the instance of Ventura. Ventura's cross complaint against Huber Glass alleged that Huber Glass had supplied and installed the glass door and demanded either indemnification or contribution from Huber Glass. The plaintiffs did not amend their complaint to seek recovery from the impleaded defendant.
Before the case was submitted to the jury, both the defendant Ventura and the impleaded defendant Huber Glass moved for directed verdicts. The trial court reserved its decision. The jury found that with respect to the type of glass used in the door Ventura was causally negligent because he failed to construct and maintain this door so that it was as free from danger to frequenters as the nature of the premises reasonably permitted. It found that Ventura was not negligent as to the markings on the door. The plaintiff was held guilty of causal contributory negligence by the jury with respect to lookout. Huber Glass was found causally negligent by the jury with respect to supplying the glass for the door. The jury assessed 14.5 percent of the total causal negligence to Ventura, 22.5 percent to the plaintiff, and 63 percent to Huber Glass.
After the verdict was returned, the trial court granted both the defendant's and the impleaded defendant's motions for a directed verdict. The plaintiffs' complaint and the defendant's cross complaint were dismissed on their merits. The plaintiffs appeal from the judgment dismissing their complaint. No appeal was taken from the dismissal of the cross complaint.
The accident occurred at about 8 p.m. on May 30, 1958, at Ventura's place of business called Mars Cheese Castle, located at the intersection of Highways 41 and 43, in Kenosha county. James Raim, with his wife and two daughters, drove up to the Mars Cheese Castle, and Mrs. Raim and the older daughter, Jacqueline, went in to make a purchase. Shortly thereafter, Barbara got out of the car and either ran or walked rapidly toward the door of the cheese market, which was about 12 feet away. It was raining at the time, and Barbara lowered her head to keep the rain out of her face. She struck the lower half of the glass door with her head, causing the glass to shatter, with resulting injuries to her. At the time of the accident Barbara was ten years old, four feet, six inches tall, and weighed 55 pounds.
The door contained a single panel of quarter-inch plate glass, three feet, two inches wide by six feet, seven inches high, which was bordered on all four edges by a three-inch aluminum strip. There was a metallic center strip across the width of the glass. A white metallic "pull" bar was attached to the outside of the door, and word "Pull" was lettered on the glass above the center strip. The interior of the cheese market was well lighted.
Previous to this accident, Ventura had not experienced any trouble with the glass door. The architect who designed the cheese market had not specified the kind of glass to be used in the door. Ventura followed the recommendation of Huber Glass as to the kind of glass to use in the door.
On the evening of the accident, Ventura had Huber Glass install a duplicate panel of quarter-inch plate glass in the door. About three months later, Ventura had Huber Glass replace the quarter-inch plate glass with a shatterproof glass panel known as "turflex."
Further facts will be stated in the opinion.
There is ample evidence to support the jury's finding that the glass door in question was adequately marked. Thus there is no question of illusion or camouflage which might have misled the plaintiff. This distinguishes the case at bar from such cases as McCain v. Bankers Life Casualty Co. (Fla. 1959), 110 So.2d 718, 68 A.L.R. 2d 1194, and Grabel v. Handro Co. (City Ct. 1955), 161 N Y Supp.2d 998. See Anno. 68 A.L.R.2d 1204. The other basis for claimed liability on the part of the respondent Ventura is his alleged violation of his duty with respect to the type of glass used in the door under sec. 101.06, Stats.
Whether a structure falls short of the standard required under the safe-place statute is ordinarily a factual question to be resolved by the jury. The trial judge, however, concluded that Ventura's motion for a directed verdict should have been granted because, as a matter of law, he did not violate the safe-place statute with reference to the type of glass used in the door. The issue in this case is the correctness of that ruling.
Ventura's duty was to make his premises, including this door, as safe, or free from danger, as their nature would reasonably permit. Secs. 101.06 and 101.01 (11), Stats. There is no evidence that Ventura had reason to anticipate that the door would be subjected to an extraordinary force such as that applied by the plaintiff Barbara Raim. Had the glass broken under more-normal use thereof, such as by a slamming or by a person's being pushed or crowded into the door, a jury issue would have been presented. See Watts v. Bacon Van Buskirk Glass Co. (1958), 20 Ill. App.2d 164, 155 N.E.2d 333, affirmed, 18 Ill.2d 226, 163 N.E.2d 425; Small v. 870-7th Ave. Corp. (1948), 273 App. Div. 216, 76 N.Y. Supp.2d 384; see also Appleman, Plate Glass Door Cases, 1959 Trial and Tort Trends, p. 32. The plaintiff's ramming the door with her head upon a fast walk or run for a distance of 12 feet does not fairly present a jury issue as to whether this door was as safe as it reasonably might have been under our safe-place statute.
The duty to keep premises safe under sec. 101.06, Stats., does not make an owner an insurer; it "does not guarantee safety." Hipke v. Industrial Comm. (1952), 261 Wis. 226, 233, 52 N.W.2d 401; Neitzke v. Kraft-Phenix Dairies, Inc. (1934), 214 Wis. 441, 446, 253 N.W. 579. In the latter case, this court said:
". . . when the owner has done everything necessary to render his premises reasonably safe and to provide against injury resulting from acts which he could reasonably foresee, his duty to employees and to frequenters is fulfilled. . . . A reasonable interpretation of the statute as it applies to frequenters is that the employer's duty is to make the premises safe for the performance of acts which he knows or reasonably should know are going to be performed thereon."
Ventura changed the type of glass in the door subsequent to the injury, but such fact is not controlling as to the existence of a previous violation of a safe-place standard. Heiden v. Milwaukee (1937), 226 Wis. 92, 275 N.W. 922.
While the practice in the community or the custom in the trade is not conclusive as to what meets the required standard for reasonable safety, it may be admissible as evidence in connection therewith depending upon the circumstances of the case. In Johannsen v. Peter P. Woboril, Inc. (1952), 260 Wis. 341, 345, 51 N.W.2d 53, we held that the trial court properly excluded the defendant's proffered evidence to show how other contractors performed. However, that case was an action for injuries sustained when a painting contractor, using inflammable cleaning fluid, set up his painting facilities adjacent to some welding machines. The court observed that under these circumstances the practice of other contractors was immaterial:
"What could and should have been done was too clear to be affected by what other contractors might choose to do."
A usage which: is patently unsafe (as in the Johannsen Case) or a custom which is contrary to law cannot be given credence by the court. Molaske v. Ohio Coal Co. (1893), 86 Wis. 220, 56 N.W. 475; Minaghan v. State (1890), 77 Wis. 643, 46 N.W. 894.
However, where there is an avalanche of acceptability of a custom or usage, and where such general practice contravenes no established law, public policy, or common sense, it may be persuasive as to what is a rule of reason in a safe-place case. The significance of custom and usage in a case involving common-law negligence was described as follows:
"The proper standard of defendant's duty was the care which the great mass of mankind ordinarily exercise under the same or similar circumstances. Now and then it appears that the customary way of doing things is utterly disregardful of personal safety, where it is said, the mere fact that the way adopted was the customary way, is not a defense against the claim of liability. They are very extreme cases, quite different from one where men of judgment and experience commonly for a long time have been accustomed to arrange premises and instrumentalities for an ordinary business enterprise like a railroad, in a particular way, found by experience to be reasonably safe and convenient." Jensen v. Wisconsin Central R. Co. (1911), 145 Wis. 326, 335, 128 N.W. 982.
In the case at bar there was evidence that more than 2,000 doors like the respondent's have been installed in the Kenosha area during the past eight years; 98 percent of all of the glass doors in such area are like the one in question in that they employ quarter-inch plate glass. In our opinion, the existence of such one-sided usage was properly considered by the trial judge in determining whether the safe-place standards were violated by Ventura. Custom and usage will not insulate an owner from liability for maintaining an unsafe condition, but on the facts of this case they are cogent evidence of a standard that is both reasonable and safe.
In Werlein v. Milwaukee E. R. T. Co. (1954), 267 Wis. 392, 66 N.W.2d 185, 46 A.L.R.2d 1091, it was determined that as a matter of law a common carrier which is held to the "highest degree of care" was not guilty of common-law negligence when its passenger was injured by shattered glass occasioned by a snowball thrown against the trolleybus window. Notwithstanding the high degree of care required, it was noted by Mr. Justice CURRIE, speaking for the court, that safety glass was not customarily employed by other prudent carriers similarly situated.
Since we find that a directed verdict was properly granted in favor of the respondent Ventura, we do not reach the question of the manner in which the comparison of negligence was submitted to the jury.
By the Court. — Judgment affirmed.