March 4, 1959 —
April 7, 1959.
APPEAL from an order of the circuit court for Marathon county: GERALD J. BOILEAU, Circuit Judge. Affirmed.
For the appellant there was a brief by Gorman Gorman of Wausau, and oral argument by David A. Gorman.
For the respondent there was a brief by Schmitt Wurster of Merrill, and oral argument by C. B. Wurster.
Action to recover damages for personal injuries. The complaint alleged that the defendant is a Wisconsin corporation located in the city of Wausau and is engaged in the business of buying, selling, and dismantling used motor vehicles, and the sale of used parts and junk; that the defendant is the owner of certain real estate in said city where it carries on its business, which business is conducted for profit, through its officers and employees, and that such premises were at all material times a place of employment as defined in sec. 101.01 (1), Stats.; that the premises were and are bisected by the single-track main line of the Chicago North Western Railway Company extending from east to west; that near the eastern boundary of the defendant's premises it has constructed a private crossing over said railway right of way from north to south, which crossing afforded the sole means by which employees of the defendant and frequenters of the premises could and did move from that portion of the premises lying north of the track to the portion thereof lying on the south side; that it was defendant's duty to keep removed all brush, weeds, trees, and other plant growth which interfered with a view of the trains approaching the crossing from either direction; that on January 10, 1957, plaintiff went upon defendant's premises for the purpose of procuring some secondhand parts and did procure the same at defendant's warehouse situated north of the railway track; that thereafter he drove across the said private crossing; that as plaintiff approached said private crossing on defendant's premises his view to the southeast and east along the railway track was cut off and obscured by a dense growth of high brush which extended from such private crossing eastward along the north side of the track and said dense growth of brush prevented plaintiff from seeing the approach of a train upon the railway track until the train was within a few feet of the crossing; that plaintiff's car was struck by a westbound train and plaintiff was seriously and permanently injured; that the collision and plaintiff's resulting injuries and damages were caused directly and proximately by the negligence of the defendant in failing to maintain its place of employment in a safe condition, with such freedom from danger to the life, health, safety, and welfare of its employees and frequenters as the nature of the employment and place of employment would reasonably permit, by failing to remove and keep removed the brush and other plant growth which interfered with the view of the trains approaching the private crossing from the east; that as a result of the defendant's negligent failure to furnish a safe place of employment plaintiff was injured.
The defendant demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. An order was entered overruling the demurrer on September 13, 1958, and the defendant appealed.
The defendant first contends that the place where the accident occurred was not a part of the defendant's place of employment. The point of accident clearly was on the private crossing over the track of the railway company. The defendant contends that the fact it may have been allowed by the railway company to construct the crossing over its right of way for the convenience of defendant's employees and frequenters did not make the main-line track a part of defendant's place of employment.
The defendant relies upon cases such as Dickson v. Industrial Comm. 261 Wis. 65, 51 N.W.2d 553, and International Harvester Co. v. Industrial Comm. 220 Wis. 376, 265 N.W. 193. The plaintiff admits that the defendant did not own the land upon which the private crossing was constructed but contends that the defendant had control thereof and that the case is governed by cases such as Potter v. Kenosha, 268 Wis. 361, 68 N.W.2d 4, Johannsen v. Peter P. Woboril, Inc., 260 Wis. 341, 51 N.W.2d 53, and Northwestern Fuel Co. v. Industrial Comm. 197 Wis. 48, 221 N.W. 396.
The defendant further contends that, even though it be held that the place where the accident occurred was a place of employment, the complaint fails to allege that there was anything wrong with the construction of the private crossing as far as the materials, surface, and physical condition were concerned. The plaintiff admits that the alleged negligent act of the defendant was not at the exact point of the accident but contends that permitting the growth of brush which obscured plaintiff's view was the cause of the accident.
As a general rule, in pleading negligence, only ultimate facts rather than evidentiary facts need to be pleaded. A complaint, when attacked by demurrer, should be liberally construed, and sustained if it expressly, or by reasonable inference, states any cause of action. The trial court applied these rules of construction and held that the complaint stated a cause of action. We agree.
In addition to the cases mentioned above, each of the parties cites and discusses other Wisconsin cases dealing with the subject of what constitutes a place of employment. We do not discuss the cases cited for the reason that some inference might be made upon the trial that one or more of the cases would be applicable to the facts that will be developed upon the trial.
By the Court. — Order affirmed.