May 7, 1952 —
June 3, 1952.
APPEAL from a judgment of the circuit court for Brown county: E. M. DUQUAINE, Circuit Judge. Affirmed.
For the appellant there was a brief by Cohen, Parins Cherney of Green Bay, and oral argument by Robert J. Parins and Colburn G. Cherney.
For the respondents there was a brief by Kaftan, Kaftan Kaftan of Green Bay, and oral argument by Arthur J. Kaftan.
On March 29, 1949, the defendants operated twelve bowling alleys located in a building owned by them in the city of Green Bay. In the northwest corner of the building was a locker room. Along the north wall of this room were located several lockers, rented and used by bowlers for the storage of bowling balls and bowling shoes. Although the record is not specific as to the number of lockers, apparently there were four tiers, each eighteen inches high and eighteen inches wide. The top of the bank of lockers was approximately six feet above the floor of the room and there were several feet of space between the top of the locker and ceiling. The flat surface upon the top of the lockers was utilized for storage of bowling score sheets and other items that would lie flat thereon, and for the storage of a stepladder.
Plaintiff had bowled for many years and maintained one of the lockers in the locker room that was about in the center of the lockers on the north wall. In front of the locker was a long bench extending east and west, upon which bowlers sat while changing shoes.
On the night in question plaintiff bowled with one of the teams in the Cosmopolitan League. Twelve teams, consisting of five men on each team, started bowling at seven o'clock and another group of teams bowled at nine o'clock. Plaintiff went to the bowling alleys on said date shortly before seven o'clock. He opened his locker and removed therefrom his bowling ball and bowling shoes, which were in a bowling bag within the locker. He put on his bowling shoes, leaving his street shoes under the bench, together with the bowling bag. He finished bowling shortly before nine o'clock and returned to the locker room. He sat on the bench facing the lockers to the north. He bent over to reach his street shoes which were under the bench, and while in that position with his face about one foot above the floor he was struck by a falling object on the right side of the back of his head. Immediately he heard an object strike the cement floor of the locker room. He did not see the object but identified it from the sound as a bowling ball.
Just prior to the accident an employee of the defendants by the name of Salatte entered the locker room to get the ladder lying upon the top of the lockers so that he might reach a fluorescent light. There was a ridge either one-half inch or one inch high around the outer edge of the flat space on top of the lockers. In order to remove the ladder Salatte had to first raise it above the ridge and then pull it toward him. Just as he raised the end of the ladder, but before he pulled it toward him, he heard the plaintiff say "Ouch." He immediately looked down and saw the plaintiff holding his head with his hand and there was blood upon his hand. Almost immediately thereafter he saw a bowling ball upon the floor near the plaintiff.
At the time of the accident many people were in the locker room. There were those who had finished bowling and bowlers who were to bowl on the nine o'clock shift. After the accident Salatte also saw a bowling bag on top of the lockers near the plaintiff. The ladder rested flat upon the top of the locker and occupied all of the space between the front of the lockers and the north wall.
The first four questions of the special verdict with the answers by the jury were as follows:
"First question: Was the plaintiff, Peter Du Bois, on March 29, 1949, while in the locker room of the defendants, struck on the head by a falling bowling ball?
"Second question: If you answer the first question `Yes,' then answer this second question: Was the fall of the ball caused by the act of Pat Salatte, an employee of the defendants?
"Third question: If you answer the second question `Yes,' then answer this question: At or just prior to the fall of the ball did defendants' said employee fail to exercise ordinary care for the safety of the bowlers in the locker room?
"Fourth question: If you answer the third question `Yes,' then answer this question: Was such lack of care upon the part of defendants' said employee a cause of plaintiff's injury?
Upon motions after verdict the trial court changed the answer to the second question from "Yes" to "No," and struck from the verdict the answers to the third and fourth questions. Judgment was entered on December 7, 1951, dismissing plaintiff's complaint, and the plaintiff appeals from said judgment.
The plaintiff contends that there was sufficient credible evidence to support the answers of the jury to the questions in the special verdict. He calls attention to the fact that the trial court did not change the answer to the first question and therefore it is a verity in this case that the plaintiff was hit by a falling bowling ball. He states that the sequence of events, the movement of the ladder, the exclamation of the plaintiff, the sound of the ball falling on the floor, and the actual presence of a ball on the floor, all occurring at approximately the same time, admit of an inference that there was a ball on or near the ladder, in or out of the bowling bag, and that the act of Salatte in raising the ladder precipitated the fall of the bowling ball. The trial court, in its memorandum decision, answered this contention as follows:
"Salatte saw no ball on the locker that he could recall. In answer to the question whether he was in a position where he could have seen a ball if there were a ball on top of the ladder, he said, `Well, things had to be done in such a hurry that I'd say offhand if there was a ball there and staring directly at me and I was staring directly at the ball, I would have seen it.' After the accident he saw an unidentified brown bowling bag on top of the locker ahead of Du Bois. The ladder just about completely covered the locker so that no ball could rest between it and the near edge of the locker. If there were a ball on top of the locker, it would have to be resting on the ladder.
"No one testified that on the night in question or at any other time he ever saw a bowling ball on top of the lockers, at this particular place or at any other place in the locker room. Salatte testified that the orders from his employers were that nothing was ever to be stored on top of the lockers except flat things, such as papers and boxes, and that anything placed up there had to be flat. Occasionally bowlers would put their shoes or bowling bags on top of the tiers of lockers. The orders to Salatte were that no bowling balls or anything that was going to fall were to be put on top of the lockers. So far as the evidence shows, the orders were obeyed.
"To get the ladder down Salatte testified that he had to reach over his head. This indicates that he could not see the top of the lockers but would not indicate that he could not have seen a ball lying thereon. Salatte further testified that he had to push the ladder up first perhaps a half inch and had not started to pull it toward him when the accident occurred. Obviously, he could not with one hand do more than lift the near leg of the ladder to get it higher than the ridge so as to permit it to be slid off, and in raising the near leg, or side, the ladder would be tilted backward, not forward. There is accordingly nothing in the testimony of Salatte as to his movement of the ladder that would cause a ball, if there were one on the ladder, to roll forward toward the face of the lockers. Salatte's testimony on this point is clear:
"` Q. And this happened simultaneously with your moving the ladder? A. That's right.
"` Q. You actually had to push the ladder up first, is that right? A. Maybe a half inch.
"` Q. And then you started pulling it toward you? A. I didn't have a chance to pull it toward me.
"` Q. You just started to lift it up, is that right? A. I just started to lift it up.'
"Both the plaintiff and Salatte testified that there were a a lot of bowlers in the locker room. The evidence permits of no other conclusion than that several of the bowlers in the locker room at the time were in possession of their own private balls. No unreal assumption is involved when it is stated that bowling balls sometimes drop from the hand or arm of a bowler. If a bowler carrying his ball in the crook of his arm was passing in the rear of plaintiff and the ball fell, it would have been the one that struck the plaintiff.
"It seems to me that the case presents a situation where the crucial question: Where did the bowling ball come from? lies in the field of conjecture. Furthermore, the possibilities pointing to someone other than the defendants as the responsible party are at least as great as those which point to the defendants. There is nothing in the case that warrants rejection of Salatte's testimony, and, as indicated above, his disturbance of the ladder was such as would cause a ball to move to the rear rather than forward if there were one on the ladder. And, if there were one on the ladder, it would be in all probability securely seated in between the steps. The actual evidence points at least as strongly to a ball dropped by a bowler as to one caused to fall by Salatte."
We agree with the trial court in its analysis of the evidence. The plaintiff had the burden of proving that his injury was caused by some act of negligence on the part of Salatte. He did not meet the burden of proof by any testimony that would warrant the jury to draw the inferences it did in answering the questions in the special verdict. It is apparent that the answers were the result of speculation and conjecture.
The plaintiff finally contends that the facts in this case present a proper instance for the application of the res ipsa loquitur doctrine. There are two reasons why that doctrine cannot be applied here. It is fundamental in cases where that doctrine is to be applied that the defendant be vested with the control and management or be responsible for the control of the instrumentality or thing causing the injury. Cummings v. National Furnace Co. 60 Wis. 603, 18 N.W. 742, 20 N.W. 665; Ashton v. Chicago N.W. R. Co. 198 Wis. 618, 225 N.W. 328. In Wisconsin Telephone Co. v. Matson, 256 Wis. 304, 308, 41 N.W.2d 268, the Wisconsin cases involving the application of this doctrine were reviewed as follows:
"Defendant's motion for judgment dismissing the complaint should have been granted unless this is a case where the doctrine of res ipsa loquitur may legitimately be employed. In Kirst v. Milwaukee, Lake Shore Western Railway Co. (1879), 46 Wis. 489, 492, 1 N.W. 89; Cummings v. National Furnace Co. (1884), 60 Wis. 603, 18 N.W. 742, 20 N.W. 665; and Dunham v. Wisconsin Gas Electric Co. (1938), 228 Wis. 250, 280 N.W. 291, recovery was permitted under that doctrine which was expressed in each of those cases as follows:
"`. . . where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendant that the accident arose from want of care.'"
In order to invoke this doctrine it must also appear from the facts in the particular case that the accident of which complaint is made could not have happened except for negligence on the part of the defendants. As to this final reason for holding the doctrine inapplicable in this case the trial court said:
"I think the decision here is controlled by the rule of Hyer v. Janesville, 101 Wis. 371; Baars v. Benda, 249 Wis. 65; and Quass v. Milwaukee G. L. Co. 168 Wis. 575. In the Baars Case the following is quoted from the Hyer Case, viz.:
"`Where there is no direct evidence of how an accident occurred, and the circumstances are clearly as consistent with the theory that it may be ascribed to a cause not actionable as to a cause that is actionable, it is not within the proper province of a jury to guess where the truth lies and make that the foundation for a verdict. . . .'
"In the Wisconsin Telephone Co. Case, supra, the court points out that the other alternative possible cause of the accident for which defendant would not be responsible in order to make applicable the rule of the Hyer and Baar Cases must be disclosed by the evidence and not be a mere figment of the imagination. It was there said:
"`The jury may not guess that an actionable cause rather than one not actionable produced the accident when the possible nonactionable cause is present in the evidence of the circumstances, but when the nonactionable cause is present only in the imagination the question of speculation between the two or more possible causes does not arise.'
"Such alternative possible cause is clearly here present in the evidence. In this case it is a bowling ball in the possession of one of the numerous bowlers in the locker room then having balls in their possession."
We conclude for the above reasons that the case was correctly disposed of by the trial court.
By the Court. — Judgment affirmed.