Opinion
December 1, 1959 —
January 5, 1960.
APPEAL from a judgment of the circuit court for Milwaukee county: HARVEY L. NEELEN, Circuit Judge. Affirmed.
For the appellant there was a brief by Kersten McKinnon of Milwaukee, and oral argument by Charles J. Kersten.
For the respondent there was a brief and oral argument by James W. Lane of Milwaukee.
Action by the plaintiff J. J. Pindor against the defendant Herbert H. Faust, grounded upon the safe-place statute, sec. 101.06, to recover damages for personal injuries alleged to have been sustained by the plaintiff as the result of a fall while he was descending the exterior steps of defendant's store building.
The accident happened on the forenoon of August 1, 1953. The defendant's store building is located on the south side of an east-and-west street in the city of Milwaukee. The front entrance is recessed between two display windows. Proceeding from the public sidewalk southward into the store there is a narrow strip of concrete which inclines upward from north to south and then two concrete steps. The top step is sometimes referred to in the record as a platform. At the time the accident happened the doorway was equipped with a glass panel door, and a separate exterior screen door, both 3 feet, 1 inch in width. It is conceded that the store constituted a place of employment within the safeplace statute.
At the time of the accident the plaintiff had transacted business in the store as a business invitee. The plaintiff's version of the accident is that as he was leaving the store he emerged facing north, and as he started to step from the top step to the tread of the lower step his right foot stepped upon a 2 1/2-inch finishing nail which caused him to lose his equilibrium. He then sought to regain his balance by placing his left foot below the first riser to what he believed to be a horizontal surface, but which proved to be the sloping surface of the concrete strip extending between the steps and the public walk. Because of such slope, his left heel skidded on the sloping surface and he fell down, striking his back and neck. The defendant, on the other hand, testified that plaintiff walked out of the door backward and slipped on the steps in so doing.
The action was tried to the court and a jury. Upon the trial the two alleged violations of the safe-place statute relied upon by the plaintiff were:
(1) The manner in which the front steps of the store, including the narrow sloping strip of concrete at the bottom of the steps, were constructed; and
(2) The presence of the finishing nail upon the tread of the first step.
At the conclusion of the trial, the trial court refused to submit any question in the special verdict relative to the presence of the nail on the step. This was grounded upon the lack of proof that the nail had existed on the step for any appreciable length of time so as to have afforded constructive notice to the defendant of its presence on the step.
The verdict, however, did contain the following question:
"Did the defendant, Herbert H. Faust, fail to construct the steps or step and platform here in question as free from danger to frequenters as the nature of the premises would reasonably permit?"
This question was answered "No" by the jury. The jury, by other answers in the verdict, also found the plaintiff causally negligent both with respect to lookout, and in the manner in which he descended the steps, and attributed 100 per cent of the total aggregate negligence to the plaintiff and none to the defendant.
Judgment was rendered upon the verdict under date of June 30, 1958, dismissing the complaint and awarding the defendant costs. From such judgment the plaintiff has appealed.
The two issues on this appeal are:
(1) Did the manner, in which the front steps of the defendant's store were constructed, constitute a violation of par. 4 of Order 23.5116 of the state building code promulgated by the Wisconsin industrial commission?
(2) Did the trial court commit prejudicial error with respect to a certain ruling made as to the admissibility of evidence?
Method of Constructing Steps.
The orders of the industrial commission contained in the state building code originally promulgated in 1914 constitute safety orders, and any violation thereof is a violation of the safe-place statute. Wannmacher v. Baldauf Corp. (1953), 262 Wis. 523, 539c, 55 N.W.2d 895, 57 N.W.2d 745.
The height of the riser of the top of the two steps is 6 inches, and that of the lower step 5 1/2 inches above the near edge of the concrete strip lying between the bottom step and the public sidewalk. Such concrete strip is 15 11/16 inches in width and has a pitch downward to such walk of 2 1/4 inches. It is conceded that such pitch of 2 1/4 inches does not violate any building-code requirement. Plaintiff's argument, that the manner of construction of the steps was unsafe, is based solely upon the contention that, instead of such sloping strip of concrete, there should have been substituted a third step. This contention is grounded upon par. 4 of Order 23.5116 of the state building code which reads as follows:
"All stairways and steps required as exits by this code shall have a uniform rise of not more than 7 3/4 inches and a uniform tread of not less than 9 1/2 inches, measuring from tread to tread, and from riser to riser. No winders shall be used. There shall not be more than 18, nor less than 3 risers between platforms or between floor and platform and not more than 22 risers from floor to floor with no platform." (Italics supplied.)
However, par. 1, Order 23.5116 of the state building code defines a stairway as follows:
"By a stairway is meant one or more flights of steps and the necessary platforms connecting them to form a continuous passage from one level to another within a building or structure." (Italics supplied.)
While the exterior steps in question are situated in a recessed entranceway, they are not "within a building or structure," within the meaning of par. 1 of Order 23.5116. Furthermore, such steps do not extend "between platforms or between floor and platform," as stated in par. 4 of Order 23.5116.
It is our considered judgment that there was no state building-code requirement that the flight of steps in question should have consisted of three steps instead of two, so as to have eliminated the sloping strip of concrete between the bottom step and the sidewalk. Therefore, there is no merit to plaintiff's contention that the manner in which such steps were constructed constituted a violation of the safe-place statute as a matter of law.
The plaintiff also contends that there is no credible evidence to sustain the jury's findings that the plaintiff was guilty of contributory negligence. Inasmuch as the plaintiff has failed to establish any breach of the safe-place statute by the defendant, the issue of contributory negligence is moot.
Ruling on Evidence.
One of the motions of the plaintiff after verdict was:
". . .that the verdict be set aside as a whole because the court erred in refusing to admit the plaintiff's testimony of his conversation with the defendant's wife, acting as the defendant's agent, with respect to the plaintiff's conversation with the defendant's wife with reference to keeping the stairway in question clear of foreign materials, such as the nail involved here. The evidence we sought to introduce was the conversation between the plaintiff and the defendant's wife, wherein the defendant's wife was acting as the defendant's agent, as to a conversation between the wife and an insurance agent."
The facts to which such motion after verdict relates are these: There was evidence from which it might be inferred that a relationship of principal and agent existed between the defendant and his wife. The plaintiff testified to having met defendant's wife three or four weeks after the accident at which time he had a conversation with her. The plaintiff then attempted to relate what she then told him that a certain insurance claim agent had told her. Defendant's counsel objected that this would be hearsay and not admissible. The trial judge, counsel for both parties, and the plaintiff, then retired to the judge's chambers in order to enable plaintiff's counsel to make an offer of proof.
Such offer of proof took the form of questions propounded to the plaintiff and his answers thereto, all in the absence of the jury. The portion of the plaintiff's testimony given in chambers, upon which the motion after verdict is grounded, is as follows:
"And then she said: `There was a claim agent at our shop. The first thing, he came — he stepped in all excited, said: "Why don't you sweep the steps?"' And the answer she gave him: `We sweep it once a day. That is enough. We cannot sweep it every hour.'"
The court sustained the objection of defendant's counsel to the admission of such testimony. While the quoted statement purported to have been made by the insurance agent was objectionable on the grounds of its being hearsay, if offered to prove a duty on the part of the defendant to sweep the steps, it may have been admissible to explain the defendant's wife's reply. Such reply would qualify as an admission against interest inasmuch as the plaintiff apparently contends that there was a duty on the defendant to sweep the steps more often than once a day. However, even if it were error for the trial court to have rejected the above-quoted testimony by the plaintiff so given in chambers, such error clearly was not prejudicial. This is because such testimony would not have been sufficient in itself to have warranted submitting to the jury the issue of the alleged violation of the safe-place statute grounded upon the presence of the nail on the step.
By the Court. — Judgment affirmed.
MARTIN, C.J., took no part.