Opinion
June 8, 1967. —
June 30, 1967.
APPEAL from an order of the circuit court for Winnebago county: ARNOLD J. CANE, Circuit Judge. Reversed.
For the appellant there was a brief by Klueter, Larson MacKenzie of Wausau, and oral argument by H. R. Klueter.
For the respondent there was a brief by Thompson, Thompson Grant of Oshkosh, and oral argument by Andrew C. Thompson.
The board of education of the city of Oshkosh maintains a parking lot surfaced with crushed stone or gravel adjacent to a sidewalk on the south side of Church street in the city of Oshkosh. This parking lot is used heavily. As the cars exit from the lot, small stones and gravel are thrown onto the sidewalk. By the end of the day a significant accumulation of these stones occurs.
On November 8, 1963, Sarah Barber, a retired school teacher, was walking on the sidewalk on the south side of Church street. As she walked across the portion of the sidewalk adjacent to the driveway of the parking lot, she fell and injured herself. The accident occurred between 8:15 and 8:30 in the morning.
Miss Barber sued the city of Oshkosh, maintaining that the city had failed to keep the sidewalk in proper condition. Testifying about the facts of the accident, Miss Barber was vague as to when she first observed the stones on the sidewalk. However, at one point she testified that she did not observe the stones on the sidewalk prior to her fall. The accident occurred when plaintiff stepped on a stone and it rolled, causing her to lose her balance and fall. Another witness testified that there was gravel all over the sidewalk where plaintiff fell.
The board of education had acquired the lot three to four years before the accident. Crushed gravel was put on the lot by the board of education in late October, 1963, and stones and gravel were frequently on the sidewalk. The custodian was given instructions to sweep the, driveway, and swept the sidewalk periodically when he had time. However, the custodian did not arrive at work until one o'clock in the afternoon, and did not specifically recall sweeping the driveway on the day in question. Because of a lack of funds, the parking lot was not blacktopped.
On this testimony, the jury returned a verdict finding both the plaintiff and the defendant negligent and finding that the negligence attributable to the plaintiff was 60 percent and the negligence attributable to the defendant was 40 percent. In motions after verdict, the plaintiff asked that the answer to the comparative-negligence question be changed to indicate that plaintiff's negligence was not equal to or greater than that of the defendant. The plaintiff also asked for a new trial in furtherance of justice and because the verdict was contrary to law and evidence.
In its opinion, the trial court found:
". . . as a matter of law that while both parties were causally negligent, as a matter of law the causal negligence of defendant exceeded that of the plaintiff. The Court is doubtful whether or not it can make the comparison where it is satisfied the jury erred, frankly stating, however, that if it were authorized to do so it would assess the causal negligence of defendant at 60% and that of the plaintiff at 40%."
A new trial on the sole question of the comparison of causal negligence was ordered. Defendant appeals.
The sole issue presented on this appeal is whether, as a matter of law, the apportionment of negligence to the defendant city is greater than the negligence of the plaintiff.
We think not. Both parties admit negligence, the plaintiff because of her failure to make an efficient observation; the defendant, because of the hazardous condition the city allowed to exist. It was a bright clear day and the stones would have been perfectly apparent to plaintiff had she looked or paid attention to where she was walking. Yet, the hazardous condition had existed for more than two weeks, and the city's precautions in cleaning the stones from the sidewalk were inadequate. The custodian testified that he swept the walk only when he was not too pressed for time.
In our opinion this is a case where credible evidence exists to support the jury's apportionment of negligence. Admittedly, the case is close and had we been members of the jury we might have allocated the negligence otherwise. But we have repeatedly held that ordinarily apportionment of negligence is for the jury. The general rule is that a jury's findings as to negligence apportionment will be sustained if there is any credible evidence that, under any reasonable view, supports such findings.
Lawver v. Park Falls, ante, p. 308, 151 N.W.2d 68; Maus v. Cook (1961), 15 Wis.2d 203, 112 N.W.2d 589; Mullen v. Reischl (1960), 10 Wis.2d 297, 103 N.W.2d 49.
Maus v. Cook, supra, footnote 1; Wintersberger v. Pioneer Iron Metal Co. (1959), 6 Wis.2d 69, 94 N.W.2d 136; Olson v. Milwaukee Automobile Ins. Co. (1954), 266 Wis. 106, 62 N.W.2d 549, 63 N.W.2d 740.
This is not such an unusual case that in view of the entire record the trial court was entitled to disturb the apportionment. The trial court was incorrect in holding that defendant city, as a matter of law, was more negligent than the plaintiff. Because of that error the order for a new trial must be set aside and the verdict reinstated.
By the Court. — Order reversed, verdict reinstated and judgment for defendant entered on such verdict.