Summary
In Padley v. Lodi (1940), 233 Wis. 661, 290 N.W. 136, the plaintiff was injured in a fall on a street of the defendant village; she stepped off a curb and stumbled or slipped on a water-main shutoff box protruding from the street.
Summary of this case from Barthel v. Wisconsin Electric Power Co.Opinion
January 18, 1940 —
February 13, 1940.
APPEAL from a judgment of the county court of Columbia county: A. F. KELLOGG, Judge. Reversed.
For the appellant there was a brief by Olin Butler, and oral argument by Eldon J. Cassoday and Robert M. Rieser, all of Madison.
For the respondents there was a brief by Rogers Owens of Portage, and oral argument by Harlan B. Rogers.
Action begun February 18, 1939, by Sadie G. Padley and her husband, Wayne Padley, against the village of Lodi for damages resulting from injuries sustained by the wife in a fail in the street of the defendant village. Judgment in favor of plaintiffs; defendant appeals.
On the evening of July 9, 1938, the plaintiff stepped down from a seventeen-inch curb, and her foot came in contact with the top of a water-main shutoff box, one and four-fifths inches in height and located fourteen inches from the curb. Instead of allowing the box to protrude sharply out of the pavement, the city had built around the edges of the shutoff box a cement collar which tapered from the top down flush with the pavement.
The case was tried to the court and jury, and by special verdict the jury found that it was necessary to change the construction of the shutoff box in order to make it as free from danger "to persons lawfully using the street, as the nature of the operation of the water system would reasonably permit;" that failure of the village to properly locate and install the shutoff was the cause of the injury to Sadie Padley; that the place and construction of the shutoff unnecessarily interfered with the lawful use of the street by the plaintiff, and constituted such shutoff box a nuisance; that the existence of the nuisance was the cause of the injury; that the water department of the village was negligent in the manner in which it located and constructed the water shutoff box, and that this negligence was a cause of the injury; and that the plaintiff was free from negligence.
The trial court submitted the case to the jury on a special verdict inquiring in effect as to whether a safe place of employment existed, and whether the water shutoff box was a nuisance maintained by the village. Judgment was granted on the theory that the safe-place statute applied in this case. The position is untenable. The words "place of employment" carry a definite meaning which leaves no room for plaintiff's claim, under the circumstances of this case, that she was a frequenter of a place of employment; for, as a matter of fact, she was using the streets of the municipality merely as a traveler. A place of employment originally meant and still does mean a place where active work, either temporary or permanent, is being conducted in connection with a business for profit; where some process or operation related to such industry, trade, or business is carried on; and where any person is directly or indirectly employed by another. Secs. 101.01 (1) and 101.06, Stats. Waldman v. Young Men's Christian Asso. 227 Wis. 43, 277 N.W. 632; Herrick v. Luberts, 230 Wis. 387, 284 N.W. 27.
The surface of the street at the place of the accident was not being used in such a manner as to create a place of employment, nor does the fact that some thirty years ago pipe was laid beneath the surface of the street for the purpose of carrying water into a building, and that a shutoff box was placed so as to rise about one and four-fifths inches above the surrounding surface, constitute the street or the shutoff box a nuisance. The street having been surfaced, and not being a place of employment, actions brought to recover for injuries to travelers due to defects are controlled by sec. 81.15, Stats. It is not contended by respondent that a cause of action now exists under that section, because conditions precedent to a cause of action thereunder have not been met.
The municipality has control of the streets in its governmental capacity. This may be affected by operations actually and actively carried on to the extent that while employees are engaged in such operations the portion of the street used may become a place of employment. Therein lies the distinction between this case and the case of Badten v. Stevens Point, 209 Wis. 379, 245 N.W. 130. This case is ruled by Calvert v. Appleton, 196 Wis. 235, 219 N.W. 102, and Herrick v. Luberts, supra.
By the Court. — Judgment reversed, and cause remanded with directions to dismiss the complaint.