The plaintiffs' complaint alleges that the defendant violated the safe-place statute (sec. 101.06).
The plaintiffs contend on this appeal that question 4 of the special verdict was unnecessary and, therefore, the jury's answer thereto should have been disregarded by
It is well established in Wisconsin that the safe-place statute does not create a cause of action. "It merely lays down a standard of care and if those to whom it applies violate the provisions thereof they are negligent." Ermis v. Federal Windows Mfg. Co. (1959), 7 Wis.2d 549, 555, 97 N.W.2d 485. The learned trial judge undoubtedly had this principle in mind when he framed question 3 of the special verdict. This is because such question inquires, "Was such negligence on the part of defendant a cause of Lora Krause's injuries?" It is the violation of the safe-place statute which constitutes negligence on the part of an owner of a place of employment. In this respect such statute does not differ from any other safety statute which imposes a duty to exercise a certain prescribed type of care, such as those rules of the road which are embodied in statutes.
In order for the owner of a place of employment to be found to have violated the safe-place statute with respect to a defect due to a failure of maintenance or repair, he must have had either actual or constructive notice of such defect. Shumway v. Milwaukee Athletic Club (1945), 247 Wis. 393, 398, 20 N.W.2d 123; Boutin v. Cardinal Theatre Co. (1954), 267 Wis. 199, 204, 64 N.W.2d 848; and Uhrman v. Cutler-Hammer, Inc. (1957), 2 Wis.2d 71, 75, 85 N.W.2d 772. The rationale of such rule is stated in Pettric v. Gridley Dairy Co. (1930), 202 Wis. 289, 292, 232 N. W. 595, as follows:
We would agree with plaintiffs' contention that question 2 of the verdict made question 4 superfluous, if the trial court would have charged the jury with respect to the necessity of the jury's finding that the defendant had either actual or constructive notice of the alleged unsafe condition in order for the jury to answer question 2 "Yes." However, the trial court gave no such instruction with respect to question 2, but instructed the jury with respect to the element of notice only as to question 4. The objection to use of a separate question covering the element of notice is that because, in the absence of such element in the case of a temporary or transitory defect, there can be no violation of the safe-place statute, and consequently no negligence. Therefore, the use of such additional question is liable to confuse the jury when it comes to consider and answer the comparative-negligence question, as apparently happened in the instant case.
We deem the answers given by the jury to the questions of the special verdict to have resulted in an inconsistent verdict. This is because the "Yes" answer to question 2,
The "No" answer to question 4 cannot be treated as surplusage, and judgment be entered upon the verdict in behalf of the plaintiffs, unless it can be determined as a matter of law that the defendant did have actual or constructive knowledge of the unsafe condition which the jury found caused the plaintiff wife's injury. While the defendant may have been chargeable with constructive knowledge that some of the nuts on the repaired chairs did become loose and some came off, the testimony of the employee Nelson tended to show that steps were taken to remedy this, and to inspect the dance floor to see that no foreign objects were present upon it. A jury issue, therefore, was presented as to whether the defendant had constructive knowledge of the unsafe condition which it was found caused the plaintiff wife's injury.
We recommend that trial courts, in framing the question of the special verdict which inquires as to whether a defendant violated the safe-place statute, employ the word "negligent." The reason for this is in order to better correlate this question in the minds of the jury with the comparative-negligence question of the verdict. In line with such recommendation, question 2 of the instant verdict, would have been worded substantially as follows:
"At the time and place in question [or at the time and place of Lora Krause's injury] was the defendant negligent with respect to maintaining the dance hall as safe as the nature of the place reasonably permitted?"
By the Court.—Judgment reversed, and cause remanded for a new trial.
"EMPLOYER'S DUTY TO FURNISH SAFE EMPLOYMENT AND PLACE. Every employer shall furnish employment which shall be safe for the employees therein and shall furnish a place of employment which shall be safe for employees therein and for frequenters thereof and shall furnish and use safety devices and safeguards, and shall adopt and use methods and processes reasonably adequate to render such employment and places of employment safe, and shall do every other thing reasonably necessary to protect the life, health, safety, and welfare of such employees and frequenters. Every employer and every owner of a place of employment or a public building now or hereafter constructed shall so construct, repair, or maintain such place of employment or public building as to render the same safe."