Opinion
September 7, 1965 —
October 5, 1965.
APPEAL from a judgment of the circuit court for Columbia county: ROBERT H. GOLLMAR, Circuit Judge. Affirmed.
For the appellant there was a brief and oral argument by Francis R. Bannen of Wisconsin Dells.
For the respondents there was a brief by Vaughn S. Conway and Kenneth H. Conway, Sr., both of Baraboo, and oral argument by Vaughn S. Conway.
Mrs. Parchem, who, with her husband, is plaintiff, attended Mass. on July 10, 1960, at the church of defendant congregation. On leaving, she fell while descending the exterior front steps to the street level.
The church faces west. The doors swing outward over a concrete platform, with a concrete stairway between that platform and the sidewalk. The stairway consists of a step or platform just below and west of the doorway platform, and eight uniform steps west of that. The eight uniform steps have 12-inch treads and seven-inch risers. The top step or platform is 23 inches deep with five-inch risers above and below it. The stairway is 24 feet eight inches wide (north-south). There is a low wall or abutment along the north and south sides of the stairway, but no handrails at those locations. There are two handrails made of metal pipe which divide the stairway into three aisles. The center aisle is nine feet eight inches wide, and the side aisles are each seven feet six inches wide.
Defendant's Exhibit No. 6 shows the top of the stairway, looking toward the south, and is reprinted herewith. The vertical supports at the upper ends of the handrails are fastened in the middle of the top 12-inch step. No part of the handrails extends over the doorway platform or the 23-inch platform or step, and the handrails extend over only a part of the top 12-inch step.
When Mrs. Parchem came out of the church, there were a number of people on the stairway. After coming through the center doors, Mrs. Parchem stepped down to the 23-inch step, turned left to go around the upper end of the southerly handrail with the intention of descending the steps south of it. She is right-handed and was reaching for the southerly handrail with her right hand. As she stepped down with her right foot onto the top 12-inch step, between the end of the rail and the riser of the 23-inch step, she lost her balance and fell, eventually falling down the entire flight, to the sidewalk. She was fifty-five years of age, weighed 230 pounds, and is five feet seven inches tall.
Because there was no handrail along the sides of the stairway as required by a general order of the industrial commission, the court found as a matter of law that defendant was negligent with respect to maintaining the church steps as safe as the nature of the place reasonably permitted. The jury found such negligence was a cause of the accident, found Mrs. Parchem causally negligent as to her own safety, and attributed 66 2/3 percent of the causal negligence to defendant and 33 1/3 percent to Mrs. Parchem.
Judgment was entered on the verdict July 23, 1964. Defendant has appealed. Plaintiffs, by notice of review, request modification of the judgment to reflect the full award of damages, claiming there was no evidence to support the finding of causal negligence on the part of Mrs. Parchem.
Additional facts will be referred to in the opinion.
A general order of the industrial commission, 3 Wis. Adm. Code, sec. Ind 62.05 (3), concededly applicable to defendant church, provides: "Stairways and steps which have more than 3 risers shall have handrails on both sides. Rails shall be not less than 2 feet 6 inches vertically above nose of treads, or 3 feet above a platform."
Although there appears to be no express requirement that a handrail must extend the full length of a stairway, and to the uppermost step or platform, there was testimony by an inspector employed by the industrial commission that the handrail requirement is so construed, and we consider that a reasonable construction.
No provision applicable to this stairway required any handrails except along the sides. The building code, 3 Wis. Adm. Code, secs. Ind 50.001-59.75, does not apply to this stairway because the church was built, and the stairway put into its present form, before October 9, 1914.
Defendant concedes that the absence of handrails along the sides of the stairway is a violation, but argues that the absence of handrails at the sides did not cause Mrs. Parchem to fall, pointing out that when she fell, she was six or seven feet from the place the south handrail should have been, and farther from the place the north handrail should have been.
See Ruplinger v. Theiler (1959), 6 Wis.2d 493, 95 N.W.2d 254.
In making this argument defendant assumes that Mrs. Parchem would have been using the handrail which she did try to use even if proper handrails had been present at the sides of the steps. If, however, proper handrails had been present along the sides of the stairway, they would have extended throughout the length of the stairway. Mrs. Parchem had not proceeded directly down the stair, but had sought out the existing handrail, probably because of her weight, in order to have its support and protection while descending. The jury could well have inferred that the shortness of the rail was a cause of her fall because she had to step down or lean forward while in the process of reaching the rail. We think, as did the circuit court, that the jury could also properly infer that if complete railings had been present along the sides of the stairway, Mrs. Parchem's desire for support, as evidenced by her actions, was sufficient so that she would have gone to one side or the other in order to obtain the protection afforded by full-length handrails.
Defendant relies on Bean v. United States where a handrail was present, but did not extend to the bottom of the stairway. The violation was found not causal. In that case, however, plaintiff was apparently making no effort to use the handrail as he descended the stairway. When he fell, although opposite the place where the rail was missing, he was too far away to have reached it if it had been there.
(D.C. Wis. 1963), 219 F. Supp. 8.
We consider that the jury's finding that defendant's negligence was causal is supported by this record.
Plaintiffs, on motion to review, argue there is no support for the jury's finding of causal negligence on the part of Mrs. Parchem.
Mrs. Parchem's testimony suggests that she attempted to step down with her right foot when she had not yet grasped the handrail, and that her foot went down between the vertical support of the handrail and the riser just east of it. We think the jury could properly decide that ordinary care required a different approach, probably getting herself fully turned to face the west before she attempted to descend. We conclude the evidence presented a jury question whether Mrs. Parchem was causally negligent.
By the Court. — Judgment affirmed. Respondents may tax costs except for printing the two pages of their brief devoted to motion for review,