The plaintiff, John R. Rewolinski, was employed by Merchants Police, Inc., as a watchman at the manufacturing plant of the defendant, Harley-Davidson Motor Company. He worked from midnight until 8 a.m., and his duties included two tours through various parts of the plant. On these tours there were 10 stations at which the plaintiff was required to activate a clock, and the first and last stations on each tour were located in the inner room of the plant guardhouse. When the clock was tripped by the watchman in the last station in the guardhouse, a signal was automatically recorded at the office of Merchants Police, Inc., indicating that the round had been completed and that everything was in order.

The guardhouse was divided into two rooms: The outer room and the inner room. The inner room, which was always locked, contained the final station where the watchmen notified their employer's headquarters when their rounds had been completed. The outer room contained a desk and a telephone. Near the telephone was a list of people to be called in the event something went wrong.

On the night of the accident, the plaintiff was completing his first tour of duty when he discovered that the lock on the door leading to the inner room of the guardhouse was jammed. After several unsuccessful attempts to get the lock to work, he unlatched a window in the inner room by inserting a rod through a small opening between the two rooms. The plaintiff then went outside the guardhouse and climbed into the inner room through the unlatched window. The inner room was lighted, and the plaintiff testified that he could see where he was going. He stepped from the window sill onto a desk located in the inner room, and as he was about to jump from the top of the desk to the floor, the ink blotter on the desk slipped out from under him. The plaintiff fell forward, fracturing his right wrist.

Mr. Rewolinski brought suit under the safe-place statute, alleging that the premises were not as safe as their nature would reasonably permit because of the defective lock, which the defendant had failed to repair and maintain. At trial, the plaintiff testified that the lock had been defective for a period of about two months and that he had entered the inner room through the same window more than three times before. The plaintiff also testified that he had previously notified the maintenance man of the Harley-Davidson Motor Company and also Mr. Wilke, the plant's general maintenance superintendent, about the defective lock.

The plaintiff's testimony was corroborated by Thelbert Barnes, who was also working as a watchman at Harley-Davidson. Mr. Barnes testified that the lock had been defective for two months, and he had frequently notified the company maintenance man about the defect. Mr. Barnes stated that he, himself, had gone through the window once.

John Witek, another watchman, testified that he had made a half dozen written reports on the defective lock to John Slater, the company guard. Mr. Witek also testified that he had gone through the window at least a half dozen times, and that he had notified Mr. Slater regarding the watchmen's practice of going through the window when the lock failed to work.

The defendant offered evidence that the watchmen were instructed that if something unusual happened they were to telephone Merchants Police, Inc., or the plant maintenance department. Upon receiving such a call, Merchants Police, Inc., would then send a representative to the guardhouse to help. This usually took a half hour or more, and if the representative was unable to remedy the situation, the plant engineer was to be called and he would send a maintenance man or come himself if necessary. If the plaintiff failed to trip the automatic recording device in the inner guardhouse within seven minutes of the scheduled time, Merchants Police, Inc., would call him and the same process just described would be set in motion.

The defendant's witnesses denied that the company had any knowledge of the defective lock or of the manner in which the watchmen were coping with the problem. These witnesses testified as to the instructions given to the watchmen.

The jury found that Harley-Davidson was negligent with respect to maintaining the lock of the guardhouse door and that this negligence was a cause of the plaintiff's fall. The jury assessed 70 percent of the total negligence to the defendant. The jury also found that the plaintiff was causally negligent with respect to his own safety and apportioned 30 percent of the total negligence to the plaintiff. In motions after verdict, the trial court held that the plaintiff's negligence was equal to that of the defendant as a matter of law and entered a judgment dismissing the plaintiff's complaint. The plaintiff appealed.

GORDON, J.

The jury apportioned 30 percent of the negligence to the plaintiff and 70 percent to the defendant, but the trial court ruled that the plaintiff's negligence was equal to that of the defendant as a matter of law. The trial court indicated that the basis of its ruling was the fact that the plaintiff had violated the rules of his employer and had disobeyed orders when he crawled through the window, thereby exposing himself to danger.

A court undoubtedly has authority to overturn a jury's apportionment of negligence in safe-place cases as well as in ordinary negligence matters. Klein v. Montgomery Ward Co. (1953), 263 Wis. 317, 57 N.W.2d 188. Although there is judicial reluctance to change the jury's apportionment and to find a plaintiff at least equally negligent, the court will do so where "the evidence of the plaintiff's negligence is so clear and the quantum so great." Schwarz v. Winter (1956), 272 Wis. 303, 309, 75 N.W.2d 447.

Mr. Rewolinski was negligent in the manner in which he entered the inner room, and although the jury attributed only 30 percent of the total negligence to him, the trial court was impressed with the fact that he had unnecessarily exposed himself to danger, and the majority of the members of this court agree with the trial court's interpretation.

As in Klein v. Montgomery Ward Co., cited above, the plaintiff had other alternative courses of action which were open to him and which were more reasonable and more safe. In the Klein Case, the plaintiff, who was shopping in the defendant's store, walked over a length of wire fencing which a salesman had unrolled on the floor. Although the plaintiff easily could have walked around it, he chose to walk over the wire, tripped on it and fell. This court held as a matter of law that the plaintiff's negligence was equal to that of the defendant. Similarly, in the case at bar, the majority of the court is convinced that Mr. Rewolinski should have telephoned the plant engineer (the telephone being readily accessible for that purpose), or he should have desisted from entering the inner room. The latter course would have automatically brought about an inquiry by Merchants Police, Inc., a few minutes later. In Palmer v. Henry Disston Sons, Inc. (1952), 261 Wis. 368, 373, 52 N.W.2d 919, the court said:

"Plaintiff gratuitously entered into his effort under circumstances which placed upon himself the duty to exercise reasonable care, competence, and skill . . . . It became his problem."

The majority of the court is also of the opinion that the defective lock was not a cause of the plaintiff's injury. Under this view, the defendant's failure to maintain the lock on the door in proper repair was not a substantial factor in causing Mr. Rewolinski's fall from the desk in the inner room. See Ruplinger v. Theiler (1959), 6 Wis.2d 493, 95 N.W.2d 254; Sweitzer v. Fox (1937), 226 Wis. 26, 275 N.W. 546.

Two members of the court, Mr. Justice WILKIE and the writer of this opinion, would reverse the judgment of the court below. Such two justices take the view that the jury was entitled to believe that the defendant had notice of the defective lock for a period of about two months. Whether the company was aware that Mr. Rewolinski, as well as other watchmen, had entered the inner room through the window on numerous previous occasions presented a jury question. The apportionment of negligence was within the special province of the jury. Bellart v. Martell (1965), 28 Wis.2d 686, 137 N.W.2d 729, 139 N.W.2d 473; Davis v. Skille (1961), 12 Wis.2d 482, 107 N.W.2d 458; Burmek v. Miller Brewing Co. (1961), 12 Wis.2d 405, 107 N.W.2d 583. The same two justices are also of the opinion that there was a sufficiently close relationship between the defective lock and the plaintiff's fall so that the jury was entitled to answer the causation question in the affirmative. Cf. Weber v. Walters (1954), 268 Wis. 251, 67 N.W.2d 395.

By the Court. — Judgment affirmed.