DeLls v. Stollenwerk

• Decision Date: 16 December 1890
• Citation: 47 N.W. 431,78 Wis. 339
• Parties: DELLS v. STOLLENWERK ET AL.
• Court: Wisconsin Supreme Court

78 Wis. 339

47 N.W. 431

DELLS

v.STOLLENWERK ET AL.

Supreme Court of Wisconsin.

Dec. 16, 1890.

Appeal from circuit court, Milwaukee county.

The action is for personal injuries to the plaintiff, charged to have been caused by the negligence of the defendants. It is alleged in the complaint that in August, 1888, the plaintiff with her husband and family occupied a dwelling-house on a certain lot in the city of Milwaukee, at the corner of Hanover and Lapham streets, as tenant of one Edward Price, the owner thereof; that the defendants, who were partners in business as carpenters and builders, contracted with Price to remove such dwelling-house to another part of the lot, and put the same in good tenantable condition and repair,--they to furnish all labor and materials necessary for those purposes,--and to complete the work in a reasonable time; that plaintiff, her husband, and family, demanded of Price and the defendants to know whether it would be necessary to vacate the house while being so removed and repaired, or whether they could continue to occupy it with safety, and the defendants assured the plaintiff that it would be perfectly safe for them to continue to occupy the house, and that all proper means, appliances, and facilities would be furnished by them to enable her and her family to go in and out of, and to continue to occupy, the house during the removal and repair of the same; that the removal thereof was commenced August 11th, and the house was placed over the spot where it was intended to stand on August 25, 1888, and was left at a great height from the ground, without any suitable or proper means of ingress to or egress from the same, particularly at the rear door thereof, but the defendants put up at such rear door blocks and pieces of timber piled together, in lieu of permanent steps, for the purpose of enabling plaintiff and her family to go in and out of the house, as the convenient use thereof required; that plaintiff informed defendants she did not think such temporary steps were safe to be thus used, but they assured her the same were safe, and she did not know to the contrary, and relied upon such assurance; that such steps were carelessly and negligently put up, were not properly secured, and that when plaintiff attempted to descend them, on August 26th, they slipped from under her feet, by means whereof she was thrown down, and received the injuries of which she complains. Except as to the copartnership relation of the defendants, the ownership and occupancy of the premises, their contract with Price to remove the building, and, perhaps, the injuries received by plaintiff, as alleged in the complaint, the answer of defendants is substantially a denial of the material allegations of the complaint. At the conclusion of plaintiff's testimony, and again at the conclusion of all the testimony in the case, the defendants moved the court to direct a verdict in their favor, which motions were denied. The testimony is sufficiently stated in the opinion. The jury found for the plaintiff, and assessed her damages at $1,250. A motion by defendants for a new trial was denied, and judgment entered for plaintiff pursuant to the verdict. The defendants appeal from the judgment.Clarke & McAuliffe, for appellants.

Austin, Runkel & Austin, for respondent.

LYON, J., ( after stating the facts as above.)

There was considerable controversy on the trial as to whether defendants were independent contractors, or merely the servants of Price, the owner of the building in question, in the removal and repair thereof, and much testimony was given as to the terms of the contract between them. The court held they were independent contractors. Without determining this controversy, it will be assumed for the purposes of this appeal that the ruling was correct. Neither will it be determined as to what effect a breach by the defendants of their contract with Price might have upon this action, for no such breach was proved. The contract with Price seems to have been fully performed by defendants according to its terms, and to the satisfaction of Price.

It cannot be successfully claimed that the defendants owed any duty to the plaintiff to construct the steps in question, unless they promised plaintiff to do so. This is not controverted by the learned counsel for plaintiff, but he maintains the testimony tends to prove that defendants promised plaintiff to erect the steps, and make them safe for use while the work was in progress; also that they did erect them, and assured the plaintiff that the work was properly done, and the steps were safe for use, but that in fact they were negligently and insufficiently constructed, and were...