Merkley v. Schramm
Merkley v. Schramm
Opinion of the Court
To begin with it is necessary to consider appellant’s contention that the trial court did not comply with the provisions of sec. 270.33, Stats.,
“. . . strict compliance with this section is of a great help to the litigants and to an appellate court.”4
The trial court’s decisions, and findings of fact and conclusions of law, which were couched in terms of a failure by appellant to meet her burden of proof, will be
First: Is the trial court’s determination that Maxine Schramm was not guilty of negligence (1) under the safe-place statute, or (2) at common law, against the great weight and clear preponderance of the evidence?
Second: Is the trial court’s determination that Richard Schramm was not negligent against the great weight and clear preponderance of the evidence ?
Maxine Schramm’s Negligence Under Safe-Place Statute.
It is well settled that the failure to properly light a building or a part thereof subject to the safe-place statute constitutes a violation of the statute.
Two policemen who had gone to the rooming house to aid appellant after the fall, and the plaintiff, all testified that the hall was dimly lit. Thomas Dustin, a consulting electrical engineer, took a light measurement at a point directly below the light fixture and directly above the spot where the mishap occurred. The measurement was 2.9-foot candles with a 25-watt bulb. There was testimony by the plaintiff that the bulb was either 25 or 40 watts. Twelve feet down the hall toward Richard Schramm’s room the reading was .097-foot candles. Dustin testified that the lighting was inadequate under the
The trial court impliedly found that the hallway was as safe as the nature of the premises reasonably permitted. That finding is not against the great weight and clear preponderance of the evidence, unless the situation compels a finding that there was a violation of the lighting provisions of the Milwaukee Code of Ordinances which provide:
“(1) In all buildings and structures, except dwellings, row dwellings and multiple family buildings, all public pathways and stairways and all parts thereof, shall be lighted with natural or artificial lighting having an intensity of not less than two and one-half foot candles at the floor line.
“(3) In every building which accommodates four or more families or thirty persons, and in every building which accommodates transients, the public pathways and stairways shall be lighted at all times with artificial lighting as regulated in paragraph one, except that such artificial lighting may be omitted from sunrise to sunset where adequate natural lighting is provided.”6
Although the ordinance requires “all parts” of the subject buildings to be lighted to the prescribed intensity,
In the case at bar, Dr. Bussey testified:
“If he was looking straight ahead he wouldn’t see what is in front of him at all or to the side near to him, he would see what was to the side above and below only in this 15 degree central area and the lighting affect wouldn’t improve in his blind area at all no matter how bright the light was, there is no vision to the side or above in his blind vision.”
In other words, Richard Schramm did not see the plaintiff, not because of insufficient lighting but because of not tilting his telescope in such a way as to locate her in the scope of his 15-degree vision. The trial court concluded:
“Based on the medical testimony by Dr. Bussey it is quite evident that even though there would be more light in this hallway, that unless Richard Schramm was pointing his eyes at a particular point, he would be unable to see outside of the 15 degree range of his vision.”
Thus there was evidence to support the trial court’s determination that the plaintiff had failed to meet her burden of proof under the safe-place law. Putting it another way, the evidence supports a determination by the court that the accident or injury occurred at a point where the defective lighting did not exist. This determination is not against the great weight and clear preponderance of the evidence and must be affirmed.
Negligence of Richard Schramm.
Because Richard Schramm was visually handicapped, he was obliged to conduct himself as an ordinarily prudent person with the same disability would under the same or similar circumstances.
Considering the entire record a majority of the court is of the opinion that the evidence supports a finding that
By the Court. — Judgment affirmed.
“270.33 Trial by court; findings, judgment. Except in actions and proceedings under dh. 299, upon a trial of an issue of fact by the court, its decision shall he given in writing and filed with the clerk within 60 days after submission of the cause, and shall state separately the facts found and the conclusions of law thereon; and judgment shall be entered accordingly.”
Galewski v. Noe (1954), 266 Wis. 7, 16, 62 N. W. (2d) 703; Kamuchey v. Trzesniewski (1959), 8 Wis. (2d) 94, 101, 98 N. W. (2d) 403.
Supra, footnote 2.
Kamuchey v. Trzesniewski, supra, footnote 2, at page 101, citing MacPherson v. Strand (1952), 262 Wis. 360, 55 N. W. (2d) 354.
Grabinski v. St. Francis Hospital (1954), 266 Wis. 339, 63 N. W. (2d) 693; Zimmers v. St. Sebastian’s Congregation (1951), 258 Wis. 496, 46 N. W. (2d) 820; Heiden v. Milwaukee (1937), 226 Wis. 92, 275 N. W. 922.
Ch. 20-8 (d), Milwaukee Code of Ordinances.
(1959), 6 Wis. (2d) 493, 95 N. W. (2d) 254.
Supra, footnote 7, at page 496.
Lealiou v. Quatsoe (1961), 15 Wis. (2d) 128, 136, 112 N. W. (2d) 193.
Restatement, 2 Torts (2d), p. 18, see. 283C; Prosser, Law of Torts (hornbook series, 3d ed.), p. 155, sec. 32; 38 Am. Jur., Negligence, p. 895, sec. 210.
Lisowski v. Milwaukee Automobile Mut. Ins. Co. (1962), 17 Wis. (2d) 499, 506, 507, 117 N. W. (2d) 666; 38 Am. Jur., Negligence, p. 895, sec. 210; see also Wis J I—Civil, Part I, 1050.
Dissenting Opinion
(dissenting). I think the owner of the premises did not maintain the hallway in as safe a condition as its nature permitted. She needed only to put a light bulb of greater than 25 or 40 watts in the hall light fixture. The nature of the premises did not prevent this. More light was especially needed in this rooming house where elderly people lived and particularly where one roomer was partly blind. Likewise, the record is clear that Richard Schramm did not use sufficient effort within the limitations of his disability to see the plaintiff whom he bumped into and injured.
Reference
- Full Case Name
- Merkley, Appellant, v. Schramm and Another, Respondents
- Cited By
- 17 cases
- Status
- Published