Werner v. Gimbel Brothers

8 Wis. 2d 491

• Court: Wisconsin Supreme Court
• Decided: December 1, 1959
• Status: Published

Opinions

Brown, J.

In deciding defendants' motions for a directed verdict the trial court stated as facts that the scene of the accident is a place of employment and comes under the safe-place statute (sec. 101.06) ; that the area is under the control of Froedtert; the lease to Gimbel Brothers required Gimbel’s to remove ice and snow from the premises at the point where the accident occurred and to indemnify Froedtert against loss by reason of Gimbel’s occupancy.

The trial court determined as a matter of law that neither defendant Froedtert nor defendant Gimbel’s had actual or constructive notice a sufficiently long time . before Mrs. Werner’s fall to impose a duty on either or both defendants arising from the safe-place statute to discover and remedy the slippery condition which caused the accident.

The only issue on this appeal is the question of fact whether the defendants’ actual or constructive notice of the unsafe condition of the walk warned them in time to require them to take reasonable precautions to prevent such an accident. We consider that the evidence bearing on that issue presents a jury question not to be determined as a matter of law.

Witness Sokol testified that he is maintenance engineer for Froedtert’s. He comes to work at 6 a. m. It is his duty to see that the walks and parking places are cleaned from snow and ice and are sanded so they will not be slippery. He superintends a gang of seven men employed by Froedtert for that purpose and he sometimes does the sanding personally. The total area contains about 35 acres. Sokol’s practice is to take care of the walks in Gimbel’s part first. Four men are assigned to shovel walks and the others operate plows and graders. Gimbel’s employees also care for their own walks.

The record shows that rain had fallen during the night and freezing began in the early morning. The evidence permits finding that the area was slippery because of ice at 6 a. m. Mrs. Werner was injured at approximately 10:30 a. m. At that time maintenance men were spreading cinders or similar material in the parking lot but no sand, salt, or other materials had been spread to prevent slipping in the part of the walk where Mrs. Werner was hurt.

Whether knowledge of the dangerous conditions existing at 6 a. m. when Sokol came to work was insufficient notice in point of time to require defendants to take measures against the slippery condition of the walk at or before 10:30 a. m. is a jury question, as it seems to us, and whether the defendants’ duty to make the place safe is performed by postponing care of the walks near the doors used by patrons until care of the parking lot is attended to is a jury question also.

We consider the trial court erred in taking these questions from the jury and deciding them as matters of law.

By the Court. — Judgments reversed.