May 1, 1964 —
June 2, 1964.
APPEAL from a judgment of the circuit court for Dane county: RICHARD W. BARDWELL, Circuit Judge. Affirmed.
For the appellants there was a brief by Walstead, Anderson, Bylsma Eisenberg and Donald S. Eisenberg, all of Madison, and oral argument by Donald S. Eisenberg.
For the respondent there was a brief by John A. Hansen and Rieser, Stafford, Rosenbaum Rieser, all of Madison, and oral argument by Mr. Hansen.
Safe-place action by Robert Cheetham and Marion Cheetham, his wife, plaintiffs, against Piggly Wiggly Madison Company, defendant, to recover damages resulting from personal injuries suffered by Marion Cheetham when she slipped and fell on the defendant's parking lot.
The accident occurred on a Saturday afternoon, January 6, 1962, at approximately 4:15 p.m. in the defendant's parking lot at the Northport Drive Piggly Wiggly store in Madison, Wisconsin. The parking lot was slippery from an accumulation of snow, failing temperatures, and a mixture of rain and snow prior to Mrs. Cheetham's fall. By noon of January 6th, one and one-half inches of new snow had fallen, and it was still snowing at the time Mrs. Cheetham fell, with the temperature being near 20 degrees F.
At the time of the accident Mrs. Cheetham (hereinafter "plaintiff") was forty-nine years of age, and worked at Central Colony, a home for crippled and mentally retarded children, which is located on the north end of Lake Mendota. On the day of the accident, after completing her workday at Central Colony, plaintiff drove home to pick up her husband so they could do some grocery shopping.
When plaintiff arrived at the defendant's store, her husband parked the car in the fifth stall directly parallel with the front of the store entrance. The stall was the one that was closest to the store entrance that was then available. After Mr. Cheetham parked the car he got out of the car to help his wife out. They then proceeded to walk the approximate 100 feet to the store entrance, the plaintiff holding onto her husband's arm. The route they traversed was through the parking lot, there being no sidewalks from the parking lot to the store.
The Cheethams spent approximately fifteen minutes in the store, and then left the store together. As they proceeded out plaintiff stopped momentarily to look at a few items in the store entrance. Mr. Cheetham, who was carrying the groceries, continued walking on his way to the car. Plaintiff then followed behind her husband, at a distance of some four to five feet. Plaintiff and her husband used the same route in going back toward their car.
At the trial both plaintiff and her husband testified that the parking lot was very rutty and packed with ice. Plaintiff further testified that she was proceeding in a careful manner and that she was looking to see where she was going because she was afraid of falling. In addition, she testified that the ground was slippery and that she was looking down at the ground trying to find places that would not be too slippery. The last thing she remembered was that her feet went out from under her and that she fell backward. The first part of her body to strike the ground was the back of her head. At the time plaintiff fell she was wearing snow boots with corrugated rubber soles, and carrying a handbag. In instructing the jury the trial court informed the jury that the plaintiff had a "duty to guard against any injury to herself so far as by reasonable care she could protect herself."
The jury returned a special verdict finding defendant negligent in not keeping a safe place, and finding plaintiff guilty of contributory negligence. The jury assessed 25 percent of the total aggregate negligence to defendant, and 75 percent to plaintiff. The usual motions after verdict were made and denied. Plaintiffs appeal from a .Judgment on the verdict.
On this appeal the plaintiff challenges the instruction given the jury concerning her contributory negligence and asks us to find her free of contributory negligence as a matter of law.
The plaintiff complains of that portion of the instruction set out in the margin which informs the jury that it was plaintiff's "duty to guard against any injury to herself so far as by reasonable care she could protect herself." Plaintiff contends that the following sentence should have been substituted:
The plaintiff in this case, Marion Cheetham, had a duty to use ordinary care for her own safety and protection and to that end to observe the area referred to in the evidence, its immediate surroundings and all other conditions, including the weather, surrounding her while walking in the area. She was also under a duty to observe any dangers which were open and obvious to her if she was using reasonable care and caution for her own safety and protection. It was her duty to guard against any injury to herself so far as by reasonable care she could protect herself. . . .
"The mere fact that the plaintiff and her husband parked their car and alighted therefrom and proceeded to walk towards the store on the roadway, in whatever condition you may find it to have been, is not in itself evidence of negligence."
"If you find that Marion Cheetham did observe any dangers open and obvious to her then the test to be applied is whether a reasonably prudent person would, under the circumstances, use such place for walking."
The thrust of plaintiff's argument is that the use of the word "guard" was improper because the word connotes a higher standard of care than the law required of her. Portions of most instructions taken out of context are subject to the same objection. The import of the instruction viewed as a whole is that plaintiff had a duty to use ordinary care for her own safety. Willenkamp v. Keeshin Transport System, Inc. (1964), 23 Wis.2d 523, 127
Plaintiffs Contributory Negligence.
In order for her attack on the jury's verdict to be successful, plaintiff must overcome a substantial hurdle. When a jury verdict is attacked we inquire only whether there is any credible evidence that, under any reasonable view, supports the verdict. This is especially so when the verdict has the trial court's approval. Olson v. Milwaukee Automobile Ins. Co. (1954), 266 Wis. 106, 62 N.W.2d 549, 63 N.W.2d 740; Hibner v. Lindauer (1963), 18 Wis.2d 451, 118 N.W.2d 873.
Here plaintiff and her husband walked from their car to the store without incident. Plaintiff's husband returned safely even though he had a bag of groceries under his arm Thus the parking lot was not so slippery that it could not be traversed with safety in the exercise of ordinary care. This evidence will sustain a jury verdict of failure to exercise reasonable care for one's own safety. Filipiak v. Plombon (1962), 15 Wis.2d 484, 113 N.W.2d 365; Mustas Inland Construction, Inc. (1963), 19 Wis.2d 194, 120 N.W.2d 95, 121 N.W.2d 274.
Plaintiff cites Paepcke v. Sears, Roebuck Co. (1953), 263 Wis. 290, 57 N.W.2d 352; Schwenn v. Loraine Hotel Co. (1961), 14 Wis.2d 601, 111 N.W.2d 495; and Zernia v. Capitol Court Corp. (1963), 21 Wis.2d 164, 124 N.W.2d 86, 125 N.W.2d 705, in support of her argument that we should find her free of contributory negligence as a matter of law. A careful reading of those cases will disclose that in none of them was a plaintiff held free of contributory negligence as a matter of law.
In the Paepcke Case the jury had returned a verdict finding plaintiff free of contributory negligence. We refused to find the plaintiff guilty of contributory negligence as a matter of law.
In the Schwenn Case all parties were found negligent and we refused to disturb the apportionment, while reversing on the ground that the negligence of the two defendants in that case should not have been combined for purposes of comparison with that of the plaintiff.
In the Zernia Case the jury found the plaintiff free of contributory negligence but also found that the defendant did not violate the safe-place statute. The plaintiff's contributory negligence was not involved on appeal. Rather than supporting the plaintiff's case both Paepcke and Schwenn weaken it. This court does not sit as a jury in safe-place cases.
Plaintiff argues that the jury's finding of contributory negligence was actually one of assumption of risk, which, if not unreasonable, is not a defense to a violation of the safe-place statute. Meyer v. Val-Lo-Will Farms (1961), 14 Wis.2d 616, 111 N.W.2d 500. In that portion of the instructions quoted earlier the trial judge made it clear that assumption of risk, apart from that which also constitutes contributory negligence, was not in the case. By the instruction she would substitute for the one given, plaintiff impliedly and properly concedes that the reasonableness of proceeding in the face of a known hazard is a jury question.
By the Court. — Judgment affirmed.
WILKIE, J., took no part.