Summary
In Smith v. Shuda (1964), 22 Wis.2d 629, 126 N.W.2d 498, plaintiff, a married daughter, was helping her mother, the defendant, paint a kitchen in defendant's home at the latter's request.
Summary of this case from Schlicht v. ThesingOpinion
February 4, 1964 —
March 3, 1964.
APPEAL from a judgment of the county court of Portage county: JAMES H. LEVI, Judge. Affirmed.
For the appellant there was a brief by Brazeau, Brazeau, Potter Cole of Wisconsin Rapids, and oral argument by Richard S. Brazeau.
For the respondent there was a brief and oral argument by Norman L. Wanta of Stevens Point,
Action for personal injuries sustained by plaintiff-respondent, a married daughter of defendant-appellant, in a fall from a chair in the kitchen of defendant's home. Plaintiff was helping defendant paint the kitchen, at defendant's request.
Plaintiff had started to paint the ceiling and was using a ladder for that purpose. Defendant asked plaintiff to patch a crack in the wall on the other side of the kitchen. Plaintiff started to move the ladder to the other side of the room but defendant told her to use the chair, and to reach the area to be repaired from the chair. The chair was supported by tubular metal rounded at the corners rather than legs. Defendant placed the chair in position and put papers on the chair for plaintiff to stand on. The floor had a tile surface and was waxed once a week. Plaintiff was a frequent visitor at her mother's home and knew that the kitchen floor was frequently waxed. In order to reach the area of the wall to be patched, plaintiff stood on her tiptoes while on the chair. As she did this the chair slipped. Plaintiff fell and was injured.
A jury trial was held. Plaintiff's case consisted of her own testimony, that of defendant called adversely, and the testimony of a Dr. Sowka, who had treated plaintiff since the accident. Defendant introduced no evidence in her own behalf. After plaintiff rested defendant moved for nonsuit. Her grounds were that the evidence did not support an inference of negligence on her part, and in the alternative that such negligence was not causal. The motion was denied.
The trial court, without objection, submitted the matter to the jury by means of an ultimate fact verdict. Questions were put to the jury inquiring into negligence, cause, and comparative negligence on the part of plaintiff and defendant. The jury was instructed as to the duties of invitee and inviter.
Wis J I — Civil, Part II, 8020; see also Greenfield v. Miller (1921), 173 Wis. 184, 188, 180 N.W. 834.
The jury found both plaintiff and defendant causally negligent. The jury apportioned the negligence 75 percent to defendant and 25 percent to plaintiff. No claim is made that the damages assessed were excessive.
After verdict defendant moved for judgment notwithstanding the verdict; she also moved to change the answer in the special verdict regarding defendant's negligence from "Yes" to "No;" to change the answer in the special verdict concerning whether defendant's negligence was a cause of the accident from "Yes" to "No;" to change the apportionment of negligence from 75-25 to 0-100, and in each case for judgment on the verdict as so changed.
The motions were denied and judgment was entered on the verdict as rendered. Defendant appeals.
Defendant contends that she was not negligent in that she violated no duty owed to the plaintiff.
The trial court properly instructed the jury on duties of the inviter to provide a reasonably safe place and to warn of dangers not known by nor apparent to the invitee. Instructions were also given on the invitee's duty to use reasonable care for her own safety.
As far as the negligence of defendant is concerned, she not only provided a waxed floor that constituted a hazard, but also actively provided and positioned a chair that would tip easily and directed that the plaintiff use it. The jury could well conclude that defendant was negligent.
The jury found, upon credible evidence, that both parties were causally negligent. We are traditionally reluctant to invade the province of the jury in apportioning causal negligence. Cases where we have done so are generally those in which the negligence of one party is coextensive with that of the other. In the instant case plaintiff intended to use the ladder and would have done so except for the direction of defendant to use the chair. Defendant also positioned the chair. The jury could fairly determine that the causal negligence of defendant was greater than that of plaintiff.
See, for instance, Langworthy v. Reisinger (1946), 249 Wis. 24, 23 N.W.2d 482, where the sole causal negligence involved was complete failure of lookout on the part of both parties.
By the Court. — Judgment affirmed.