
    Golden and another, Respondents, vs. Peters, Appellant.
    
      May 21
    
    June 22, 1946.
    
    
      For the appellant there was a brief by Michael Levin, and oral argument by Bernard J. Wosniak, both of Milwaukee.
    
      Herman J. Posner of Milwaukee, for the respondents.
   Rector, J.

It is agreed by the parties that the issue in this case is one of common-law negligence. It was determined below that the safe-place statute was not involved and the ruling in that respect is not questioned.

There can be no doubt that the pan was insecurely attached. It gave an appearance of security which was not present. Had this false appearance caused Frieda Golden to rest her weight upon it, appellant might have been held liable, since he might have anticipated some such result. However, the accident-was not caused by any such factor. Mrs. Golden was not induced by the appearance of the pan to place her weight' upon it. She slipped and fell into the opening while endeavoring to avoid placing her weight upon it.

Had the pan been a removable one and had it been entirely removed at the time of the accident, the result would have been the same. If such had been the case, no one could very well claim that any false appearance of security was involved, since with the grille and the pan removed the opening would be entirely free of any cover. There is no evidence in the case which connects a false appearance of security with the accident. It happened because Mrs. Golden slipped and fell just as she would have slipped and fallen had there been no cover.

We know of no cases and none have been called to our attention which imposed upon the appellant a duty to so affix the pan that it would bear the weight of one who, while seeking to avoid it, might inadvertently fall upon it in the process of cleaning it. There being no such duty imposed upon the appellant, he was not guilty of actionable negligence in failing to discharge it. Waube v. Warrington (1935), 216 Wis. 603, 258 N. W. 497.

By the Court. — Judgment reversed, with directions to dismiss the complaint.  