(i) Verdict

The gravamen question in the special verdict, inquiring of the performance by defendant of his duty under safe-place law, should incorporate the word "negligent", so that the inquiry is whether defendant was negligent with respect to maintaining the place as safe as the nature thereof would reasonably permit. "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." [84]

A question should not be so worded as to require an affirmative answer in order to be favorable to the party who does not have the burden of proof in respect to the subject matter thereof. For example a question asking whether the place was as free from danger as the nature thereof would reasonably permit would be improper under standard instructions to the effect that burden of proof rests on the party having the affirmative side of an issue. [85] And, in a safe-place verdict, inquiry as to negligence with respect to safety of the place or the employment should be made in terms of "as safe as the nature thereof would reasonably permit", rather than "reasonably safe." [86]

Inquiry as to defendant's negligence "at the time and place" in question has been held not to be error. [87] Where case did not involve a structural defect but verdict inquired whether premises were maintained as to be structurally safe, the court held that confusion did not result. [88] However, such terminology is not recommended.

Conversion Table Wis. 2d or Wis. to N.W. 2d or N.W.

79. Stellmacher v. Wisco Hardware Co., 259 Wis. 310 (1951), where [312]: "The allegations of the complaint were vague and manifold. There was an allegation that the platform was slippery from snow; that the dolly which defendant provided was not equipped with brakes; and that the ground was rutted, causing the platform of plaintiff's truck to be a foot below defendant's loading platform." The Court quoted with approval from Matushka v. Murphy, 173 Wis. 484, 487 (1921): "It is the function of a special verdict to secure a finding by the jury on each question litigated. In negligence cases each ground of negligence constitutes a distinct litigated question, and proper practice requires that the jury be given an opportunity to find specially with reference to each particular ground of alleged negligence. This cannot be accomplished by the submission of an omnibus question in which the jury is required to find generally upon the question of negligence."

80. Stellmacher v. Wisco Hardware Co., 259 Wis. 310, 314 (1951), quoting with approval from Nimitz v. Motor Transport Co., 253 Wis. 362, 364 (1948).

81. See footnote 79, supra. As to question on plaintiff's status as a trespasser when that matter is in issue see Wannmacher v. Baldauf Corp., 262 Wis. 523, 539i (1952).

82. See Chapter 4, supra, regarding Knowledge or Notice. Barry, v. Employers Mutual Casualty Company, 2000 WI App 168 ¶¶ 16-21, 238 Wis. 2d 125, 136-139, 617 N.W. 2d 493, 498-500 (Ct. App. 2000).

83. Krause v. Veterans of Foreign Wars Post No. 6498, 9 Wis. 2d 547, 553 (1960); Lee v. Junkans, 18 Wis. 2d 56, 61 (1962).

84. Krause v. Veterans of Foreign Wars Post No. 6498, 9 Wis. 2d 547, 554 (1960): "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' ... 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?'" Petoskey v. Schmidt, 21 Wis. 2d 323 (1963).

85. Frankovis v. Klug & Smith Co., 275 Wis. 156, 162 (1957): "Nevertheless there must be a new trial. The first question submitted to the jury was as follows: 'At the time and place and under existing circumstances, was the place where the plaintiff was working as free from danger to frequenters as the nature thereof would reasonably permit in respect to the tightness or lack of tightness with which the clamp end of the angle iron in question was attached to the I beam?' Plaintiff's case required a 'No' answer, while the answer 'Yes' would necessarily result in judgment for the defendants. The jury were instructed, however, that 'burden of proof meant the duty resting on the party having the affirmative of the issue to convince the jury by a preponderance of the evidence and to a reasonable certainty of the truth of that party's contention; and again, further on, that before any juror can vote to answer 'Yes' to any question, his mind should be satisfied by the greater weight or convincing power of the evidence to a reasonable certainty that the answer should be 'Yes'. These instructions put the burden on defendants to convince the jury that the first and crucial question should be answered in their favor 'Yes' and thus instructed the jury to answer it favorably to plaintiff unless satisfied to the contrary to a reasonable certainty. While the confusion of affirmative and negative was undoubtedly inadvertent, it was nonetheless error to place the burden of proof on the defendants with respect to the first and basic question in the case."

86. Mullen v. Larson-Morgan Co., 212 Wis. 52, 56 (1933): "The question submitted as covering violation of the statute was: 'Did the temporary planking under all the circumstances present require wiring, nailing, or fastening in some manner in order to render the place where plaintiff was working a reasonably safe place in which to work?' ... The question submitted to the jury inquired whether the defendant had performed its common-law duty. It did not meet the issue of statutory duty. To cover the issue of performance of statutory duty by the defendant, the concluding phrase of the question above italicized should have been, in substance, in the language of the statute, 'as free from danger as the nature of the place of employment would reasonably permit', or should have used the word 'safe' instead of the words 'reasonably safe', and instructions should have been given defining the word 'safe' as it is defined in the statute."; Petoskey v. Schmidt, 21 Wis. 2d 323 (1963).

87. Petoskey v. Schmidt, 21 Wis. 2d 323 (1963): "Plaintiff's counsel argues that the wording used in the verdict directed the jury's attention to the precise moment of the event, whereas, it is claimed the question should have inquired as to whether the defendants ought to have done something prior thereto in order to make the place safe." The court, however, declined to accede to such argument.

88. Topp v. Continental Ins. Co., 83 Wis. 2d 780 (1978).