Lundgren v. Gimbel Bros.

210 N.W. 678, 191 Wis. 521, 1927 Wisc. LEXIS 89

• Court: Wisconsin Supreme Court
• Decided: January 11, 1927
• Status: Published

Opinions

The following opinion was filed November 9, 1926:

Eschweiler, J.

No evidence was offered or contention made,'that the stairway in question was dangerous on account'of. being ¡unlighted or of. improper construction. Because there was no evidence showing that through any carelessness of any of defendant’s employees the slippery substance was spilled on the step and no evidence that it had been there, prior to plaintiff’s fall, any such appreciable length of timé that the defendant, in the exercise of ordinary care in the supervision of such matters, should have known of its existence and thereby become charged with the duty of removing it, the trial court held, and 'we think rightly, that there was no showing of a breach by defendant of any duty it owed to the plaintiff’s wife.

The liability of the defendant for such a circumstance cannot be based upon the mere fact of the depositing of such substance on the stairway, but would arise because of failure to promptly remove the same after actual or constructive notice of its existence. There was here no showing of either. If it had been left there by one of defendant’s employees, that fact would have been material in charging defendant with actual and immediate notice of its existence; if by some third person, then actual or constructive notice to defendant of its presence must be shown, the duty to remove being the same in either instance.

This case is ruled by such decisions as Appel v. Ruggaber, 180 Wis. 298, 301, 192 N. W. 993; Kaszubowski v. Johnson S. Co. 151 Wis. 149, 154, 138 N. W. 54; Zugbie v. J. R. Whipple Co. 230 Mass. 19, 119 N. E. 191; Norton v. Hudner, 213 Mass. 257, 100 N. E. 546; Graham v. F. W. Woolworth Co. (Tex. Civ. App.) 277 S. W. 223. See note 33 A. L. R. 181.

By the Court. — Judgment affirmed.

The following opinion was filed November 17, 1926: