Opinion
January 13, 1961 —
February 7, 1961.
APPEAL from a judgment of the circuit court for Winnebago county: HELMUTH F. ARPS, Circuit Judge. Affirmed.
For the appellants there was a brief and oral argument by Henry P. Hughes of Oshkosh.
For the respondent there was a brief by O'Leary, Joyce Goggin of Neenah, and oral argument by E.C. Joyce.
Action under the safe-place statute commenced by plaintiffs Frank Mondl and Esther Mondl, his wife, against defendant F.W. Woolworth Company for the recovery of damages for personal injuries sustained by Esther Mondl when she fell in defendant's store in Oshkosh. In its special verdict the jury found causal negligence on the part of both the injured party and the defendant, attributing 55 per cent to Esther Mondl and 45 per cent to the defendant. Plaintiffs appeal from a judgment dismissing the complaint.
On the morning of January 24, 1959, Esther Mondl entered defendant's store as a patron. It was snowing lightly and as customers entered the store snow was tracked onto the floor. Just inside the door which plaintiff entered, a rubber mat was recessed in the floor. The rest of the floor was of vinyl or rubber tile treated with a material referred to as a "sole grip" about once a month.
Esther Mondl slipped and fell on a puddle of water a few feet beyond the rubber mat, sustaining a broken hip. She had made no observation of the floor before she fell. She did not notice the puddle of water until she was down on the floor.
James Frey was assistant manager of the defendant store and it was his duty to mop the floor to prevent accumulations of moisture from causing a hazard. He testified it was snowing slightly when he came to work at about 7:30 a.m. on January 24, 1959; that he spent most of his time in the basement stock room that morning and did not inspect or mop the floor.
The first question raised by appellants is the propriety of the trial court's instruction on Mrs. Mondl's duty to exercise care for her own safety. The court instructed the jury that:
"Every person must use ordinary care to keep a lookout ahead of and about him, and to apprise himself of possible dangers so that he may regulate his gait or his course accordingly.
"Ordinary care demands that such vigilance be increased where special circumstances exist. The degree of diligence with respect to keeping a proper lookout on the part of a customer in a store — such as the plaintiff was — in order to measure up to the standard of ordinary care which the law requires, varies with the time and place, the conditions which might normally be brought about by weather conditions or by traffic into a mercantile establishment, considering weather conditions, and the opportunity to observe things ahead of and about him or her, and all other circumstances then and there present."
Appellants argue that this instruction placed upon Mrs. Mondl a greater burden with respect to lookout than the law requires.
Ordinary care is such care as persons of ordinary prudence ordinarily exercise under like circumstances. The existing circumstances necessarily dictate what constitutes ordinary care in each instance. When the circumstances give rise to reasonable anticipation of injury, ordinary care includes the duty to act in accordance with that knowledge. As Mr. Justice FOWLER pointed out in Hamus v. Weber (1929), 199 Wis. 320, 325, 226 N.W. 392, ordinary care and the element of reasonable anticipation are the same. Negligence exists when the harm could have been reasonably foreseen as probable by a person of ordinary prudence under like circumstances.
The evidence establishes that it was snowing on the morning the accident happened. Thus, Mrs. Mondl would be chargeable with knowledge that individuals with wet shoes would have tracked moisture on the floor of the store, that wet clothing would have dripped on the floor. She should have anticipated the likelihood of a slippery floor. The exercise of ordinary care required that she consider those probabilities and maintain a lookout adequate to apprise her of any such hazards. The instruction given by the trial court was not prejudicial to the appellants under the existing circumstances.
Since the second question presented by appellants is predicated upon a determination that the instruction was improper, it is unnecessary to discuss it.
By the Court. — Judgment affirmed.