Dowling v. Nuebling

• Decision Date: 22 October 1897
• Parties: DOWLING v. NUEBLING.
• Court: Wisconsin Supreme Court

97 Wis. 350

72 N.W. 871

DOWLING

v.NUEBLING.

Supreme Court of Wisconsin.

Oct. 22, 1897.

Appeal from superior court, Milwaukee county; R. N. Austin, Judge.

Action by Mamie Dowling against August Nuebling to recover for personal injuries. Plaintiff was nonsuited, and appeals from the judgment entered thereon. Affirmed.Turner, Kelly & Turner, for appellant.

Julius E. Roehr, for respondent.

CASSODAY, C. J.

It appears from the record that the defendant, being the owner of the dwelling house, two stories high, with a basement, on the premises described, rented the upper portion of the house to the plaintiff October 4, 1895, together with a portion of the basement, which could only be entered by her by means of a stairway from the outside of the house; that the plaintiff took possession of the rooms and the key to the basement, and continued to occupy such rooms and basement as such tenant until after January 21, 1896; that, on the day last named, the plaintiff and her sister went from her residence, in the upper story of the house, to the ground, and down into the basement, by means of the stairway, and, upon her return from the basement, attempted to pass up the stairway, and while in the act of doing so, and being upon the upper step, the same did break and give way, by reason of its alleged defective condition, whereby she fell and was injured; and she brings this action to recover damages therefor. The defendant, by way of answer, admits the renting and the tenancy, but otherwise denies the allegations of the complaint, and alleges, in effect, that, if the plaintiff was injured as alleged, it was by reason of her own carelessness. At the close of the testimony on the part of the plaintiff, the court granted a nonsuit, and from the judgment entered thereon the plaintiff brings this appeal.

It is settled in this state that, “in the absence of any secret defect, deceit, warranty, or agreement on the part of the landlord to repair, he cannot be held liable to the tenant or any one rightfully occupying under him for an injury caused by the leased premises getting out of repair during the term, unless it be by reason of his own wrongful act, or failure to perform a known duty. And this is so although the premises are let to several tenants, and the injury is caused by want of repair in a passageway used by them in common.” Cole v. McKey, 66 Wis. 500, 29 N. W. 279. So, it has been held by this court that “the lessor of an hotel is not liable...