26 N.W.2d 830 | Wis. | 1947
This action was begun on February 13, 1946, by Olga Harder, as administratrix of the estate of Harold Harder, deceased, and Olga Harder, plaintiffs and respondents, against Patrick H. Maloney and Clarence H. Maloney and Sam Levitan, defendants, on account of the death of Harold Harder, deceased husband of Olga Harder, alleged to be due to the negligent use of cyanide gas in disinfecting a building known as the Friendly Tavern owned by Sam Levitan.
There was a trial. The jury found:
(1) That Harold Harder did not enter the building with the intent to commit larceny.
(2) That Harold Harder did not commit larceny after entering the building.
(3) That the defendants Maloney were negligent with respect to failing to protect against public entry into the building.
(4) That such negligence was a cause of the death of Harold Harder.
(5) That Harold Harder was negligent as to his own safety in respect to lookout; that he was not negligent in failing to heed the danger sign posted on the door of the building or remaining in the building longer than reasonably necessary to leave after detecting an unusual odor or in the exercise of ordinary care should have detected an unusual odor.
(6) That Harder's negligence as to lookout was a cause of his death; that his failing to heed the danger sign posted on the door and remaining in the building longer than reasonably necessary to leave after detecting an unusual odor or in the exercise of ordinary care should have detected an unusual odor was not a cause of his death, assessed the damages, and found *235 that the defendants Maloney were seventy-five per cent negligent and Harold Harder was twenty-five per cent negligent.
Judgment was entered accordingly on the 14th day of June, 1946, from which the defendants Maloney appeal.
On and prior to April 16, 1944, the defendant, Sam Levitan, was the owner of a building known as the Friendly Tavern, located at 1236 Michigan avenue, which is the northeast corner of Michigan avenue and Thirteenth avenue in the city of Sheboygan. The front of the building faced south, the west side of the building being along the lot line on the east side of Thirteenth avenue. The front door was at an angle or right at the corner of the building. In addition to the door at the southwest corner of the building, there was a door on the west side of the building used for the rear entrance. The west door has a large paned glass in the upper part, which is in the normal line of vision. On Exhibit 5, printed herewith, there is indicated the relative location of the warning sign.
Prior to April 16, 1944, the defendant Levitan had entered into a contract with the defendants Maloney to fumigate the building in order to destroy certain noxious insects. The entire building, which had two stories, was to be fumigated and for that purpose all occupants were removed from the building and the keys of the building taken up so that the defendants Maloney were in the sole and exclusive possession of the building.
Large warning posters printed red on white paper were mounted on cardboard and taped to it by a gummed tape. One poster was placed on the front door and one on the side door inside the glass, the printing being plainly legible from the outside. The windows and front door of the tavern were taped from the inside and the west or rear door was properly taped from the outside with gummed tape. After the door was taped, it would take a pull of thirty or forty pounds to open the door. The fumigating agent was cyanide gas, which was poured into cans that contained discs and distributed into *236 different parts of the building. The party who taped the west door, which was the exit used by those engaged in fumigation, testified that he locked the door, but upon that question there is a dispute in the evidence so we shall assume that the door was not locked.
[EDITORS' NOTE: THE PICTURE IS ELECTRONICALLY NON-TRANSFERRABLE.]
The work of fumigation commenced on Sunday morning about 11 o'clock and was completed about 2:15 o'clock in the *237 afternoon. The deceased, Harold Harder, was seen to enter the building through the west or rear door by Willis Kempers and his wife. Having seen the sign on the door Kempers knew that the building was being fumigated and that it was dangerous to enter it. He went in search of an officer, returned very shortly. The door was opened and Harder was found lying five to ten feet from the door and was pulled out of the building by Kempers and the officer but was found to be dead. Harder had apparently entered the building, gone to the back bar, taken a bottle of vermouth, started to leave the building by the west door, and died before he reached the door. Kempers and the police officer saw the warning signs on the doors which were plainly visible from the outside, saw that the door had been taped.
There is some evidence in the record to the effect that Harder was partially intoxicated, and a tavern keeper just to the north of the Levitan building had refused to sell him any more liquor, but he appeared to know what he was about, was able to walk, and there is no evidence that he was so intoxicated that he did not know what he was doing. Other facts will be stated in the opinion. The plaintiff makes four contentions in this case: (1) That the warning notice was inadequate; (2) that the deceased was not a trespasser; (3) that even if the deceased were a technical trespasser, recovery should not be *238 denied because of the inherently dangerous nature of the gas; and (4) the deceased was an invitee under the evidence and as such was entitled to have the defendants exercise reasonable care for his safety.
A trespasser is a person who enters or remains upon land in the possession of another without a privilege to do so created by the possessor's consent or otherwise. But it is argued on behalf of the plaintiff that even if Harder was a technical trespasser the plaintiff is nevertheless entitled to recover.
Harder was under the circumstances of this case something more than a technical trespasser. The undisputed evidence shows that he opened the door upon which there was a sign which must have been within two feet of his eyes, went into the building for the purpose of securing a bottle containing vermouth, and died before he reached the door. He was not an invitee because any invitation to the general public to enter the building was clearly withdrawn by the locking of the other doors and the erection of a plainly visible sign on the door through which he entered. The sign was about 17" x 14" and had upon it two skull and crossbone figures and the words:
DANGER!
FUMIGATING
WITH CYANIDE GAS
DEADLY POISON
ALL PERSONS ARE WARNED
TO KEEP AWAY
DO NOT ENTER The lettering was in red, the type was large and plainly legible. The letters in the words "DANGER" and "DEADLY POISON" were two inches in height. *239
In addition to this the door was taped and it required considerable force to open it. It is considered that as a matter of law, upon these undisputed facts, the persons then in possession of the premises had not consented either impliedly or expressly that Harder or anyone else could enter the building.
A number of questions were submitted to the jury, — among others, Did Harder enter the building with intent to commit larceny? What he intended to do after he got into the building is immaterial. The real question in the case is, Did he have any right to enter the building? If he did not, then he was a trespasser. He was not an invitee because any invitation theretofore extended was withdrawn by the closing of the building and the erection of the signs. The jury found that Harder was negligent as to his own safety with respect to lookout. This could only mean that he negligently failed to observe the sign. The jury also found that this was a cause of his death. Curiously enough they also found that his failure to heed the sign was not negligence, which is contrary to all the evidence.
"The exercise of reasonable care to give reasonably adequate warning prevents the doing of an act from being negligent, if:
"(a) the law regards the actor's interest in doing the act as paramount to the other's interest in entering or remaining on the area endangered thereby, or
"(b) the risk involved in the act, or the unreasonable character thereof, arises out of the absence of warning." Restatement, 2 Torts, Negligence, p. 808, sec. 301 (2).
As stated in comment b: "The actor's interest in doing the act is paramount to the other's interest in coming to or being in the area endangered by it, if the actor's interest is regarded as so far superior to the other's interest as to entitle the actor to expect that the other will avoid harm by keeping out of that area if he knows of the actor's intention to act. The actor's interest in doing an act which involves a risk of harm to others in a particular area is paramount in two situations. *240
"The first is one in which the other has no right or privilege to be in the danger area or his right or privilege is derived solely from the actor's consent, as where a possessor of land as a favor permits another to come thereon. In such case the occupier is entitled to expect that the trespasser or licensee will yield precedence to his, the occupier's, use of his premises. He is therefore entitled to assume, in the absence of any reason to believe otherwise, that an adequate warning will cause the trespasser or licensee to avoid danger by keeping out of its way." Restatement, 2 Torts, Negligence, p. 810.
Certainly, in this case, the owner of the premises had a perfect right to have the premises fumigated for the purpose of making them more habitable. His rights were paramount to those of Harder. He took the precaution of having all the occupants vacate the building. The persons who were to do the fumigating gathered up all of the keys, locked the doors except the west door, erected adequate warning signs, and under the circumstances they had a right to assume that anyone approaching the premises would heed the sign and avoid danger. It is apparent that Harder, although he saw or should have seen the warning sign, was willing to risk the danger involved in entering the building in order to get a bottle of liquor. There are two grounds upon which the plaintiff cannot recover: First, the defendants were not negligent in failing to give adequate warning; and, second, the contributory negligence of Harder was the sole cause of the injuries which he sustained.
On its main facts and the legal principles involved, this case closely resembles Newell v. Schultz Brothers Co. (1942)
In that case the plaintiff was a customer in a general-store building. While a clerk was looking for articles which the customer wished to examine, she walked along an aisle through a doorway into an areaway and there stepped to her left and fell down the stairs to the basement, sustaining serious injuries. The stairway as well as the areaway off which it opened was *241
clearly separated from the store premises by a wooden partition, and the only way the customer could get to the stairway was by going through the doorway in the partition into the areaway and passing the door on which there was a conspicuous sign "Employees Only." This was held to constitute due notice and warning because of which no invitation to a customer to enter the areaway could be implied or be deemed to have existed. The customer was held to be a trespasser. See also Grossenbach v. Devonshire Realty Co. (1935)
The defendants having given adequate notice of the condition of the building, were not negligent, therefore it becomes unnecessary to consider the effect of Harder's contributory negligence.
There is one circumstance not adverted to in the briefs which strikes us as quite conclusive characterization of the decedent's conduct. Harder was seen to enter the building, the persons who saw him immediately sought help, procured it in a very short time, went immediately to the door through which Harder entered and found that he had gone to the back bar and returned to within five or ten feet of the door through which he had just passed. This indicates rather conclusively that Harder was aware of his peril and was endeavoring to leave the building quickly in order to escape. The difficulty was that he was overcome before he got out of the building with the liquor which he had procured. This supports the conclusion that he must have seen the warning sign and acted accordingly.
These circumstances and other facts already referred to, support no other inference than that Harder entered the building and intentionally ran the risk he incurred thereby.
It is claimed that the owner of the building, the defendant Levitan, is liable under the safe-place statute. Sec. 101.06. Under this section the owner of a building is required to make *242
it safe for employees and for frequenters. Sec.
"The term `frequenter' shall mean and include every person, other than an employee, who may go in or be in a place of employment or public building under circumstances which render him other than a trespasser."
Harder not being an employee and being a trespasser is not protected by the provisions of the so-called safe-place statute.
By the Court. — So much of the judgment as adjudges the defendants Maloney to be liable to the plaintiff is reversed, with directions to dismiss plaintiff's complaint as to the defendants Maloney; so much of the judgment as dismisses the plaintiff's complaint as to the defendant Levitan is affirmed.
