Before SCHNACKENBERG, KNOCH and KILEY, Circuit Judges.
SCHNACKENBERG, Circuit Judge.
Defendant Sears, Roebuck and Co., a foreign corporation, having its home office in Chicago, Illinois, has appealed from a judgment for $59,908.09 entered in the district court in favor of Edmund Balchuck, plaintiff, an employee of Builders Specialties, Inc., against defendant on the verdict of a jury.
Plaintiff charged that he was injured when he fell from a ladder on which he was working upon defendant's premises due to its alleged negligence.
The jury by a special verdict attributed the negligence constituting an efficient cause of the accident 80% to defendant and 20% to plaintiff.
For reversal defendant maintains (1) it was error to give the jury an instruction relating to the applicability of the Wisconsin safe-place statute, and (2) as a matter of law plaintiff's negligence was more than fifty per cent responsible for the accident he suffered.
There is very little dispute in the record as to the facts.
The place of the accident was defendant's automotive service garage in Milwaukee, Wisconsin. It has nine entrance and nine exit doors of the overhead type which operate by moving upward from the closed position perpendicular to the ground to an open position above the doorway. Each door contains six glass windows in a line, the panes being 12 inches wide by 18 inches high with about 2 1/2 inches between each pane. At the time of the accident, on December 19, 1958, the windows were intact and clean.
Perhaps as early as 1944, the doors were installed by plaintiff for an independent contracting firm, Builders Specialties, Inc., by whom plaintiff had been employed since 1937. Plaintiff worked exclusively during this period in the installation and servicing of overhead doors of the type here involved and remodeling carpenter work relating to the operation of this type of door, and did all of the servicing work on the doors here involved. Plaintiff was the lead man for his employer in connection with the servicing of these doors.
During the afternoon of December 19, 1958, the day of the accident, plaintiff responded to a request for service which had been given to Builders Specialties, Inc. by the defendant several days before. Mr. Mysak, superintendent of the service station, indicated to him that all of the doors needed servicing.
On all of the numerous occasions on which plaintiff had serviced these doors prior to the date of the accident, he had parked his truck in front of the door on which he was working so that it would act as a barricade and for his protection.
On this particular occasion he was told that he could not do so because of the lateness of the hour and the tremendous activity in defendant's service station. Plaintiff stated that, without so using his truck, the place in which plaintiff proposed to work was "dangerous" and was a "booby trap". He stated that he was told by Mysak "Don't worry about that; we'll work around you." Notwithstanding this statement plaintiff knew that Sears' employees placed no barricades for him during the hour and a quarter that he was working on the doors prior to the accident, and, in addition, during the period when he was working prior to the accident he saw no protection provided for him by defendant.
He was aware that there were no pass doors in any of the overhead doors to permit entry without raising the door when it was closed. There was a passage door through which a person could walk without using an overhead door. Plaintiff did not put any sign on wither side of the door on which he was working. He did not ask any of defendant's employees to hold his ladder for him, or to stand outside the door to guard the door, or to stand near the ladder while he was working inside the door.
The service station was very busy, there being much greater activity than on any other occasion when plaintiff had made his repair calls previously. The place was the busiest he had ever seen it. He was aware that about twenty employees of the defendant were working about the premises at the time. Plaintiff knew Loren Bergman, an employee of the defendant, that he was ...