Flood v. Pabst Brewing Co.

• Decision Date: 17 November 1914
• Citation: 149 N.W. 489,158 Wis. 626
• Parties: FLOOD v. PABST BREWING CO.
• Court: Wisconsin Supreme Court

158 Wis. 626

149 N.W. 489

FLOOD

v.PABST BREWING CO.

Supreme Court of Wisconsin.

Nov. 17, 1914.

Appeal from Circuit Court, Milwaukee County; Oscar M. Fritz, Judge.

Action by Annette Flood, by Edward J. Flood, her guardian ad litem, against the Pabst Brewing Company, and another. From an order overruling a demurrer to the complaint, the named defendant appeals. Affirmed.

Annette Flood, an infant, by her guardian ad litem brought this action to recover for personal injuries alleged to have been received by said infant through the negligence of the defendants. There was a demurrer to the complaint by the defendant Pabst Brewing Company, on the ground that it did not state facts sufficient to constitute a cause of action, which was overruled and the defendant Pabst Brewing Company, a corporation, appealed.

The complaint alleges, in substance, that the plaintiff is the father of Annette Flood, infant above named; that the defendant Pabst Brewing Company was at the times set forth the owner of property in the city of Milwaukee known as 1244 National avenue; that in 1898 said brewing company improved said property by erecting thereon a two story frame building for saloon and dwelling purposes; that said building faces south and on its east side near the southeast corner is an exterior entrance to the cellar of said building, which entrance is a part of said building and consisted of a brick wall about 8 inches thick extending upward in a vertical direction about 8 feet from a point level with the floor of the cellar; that the wall begins at a point about 3 1/2 feet north of the southeast corner of said building and runs thence in an easterly direction at right angles to said building for a distance of about 4 feet, thence 15 feet parallel to said building in a northerly direction, thence in a westerly direction about 4 feet to the main foundation of said building; that said wall incloses a flight of wooden steps which extend parallel to said building from the south side of the wall in a downward direction to the level of the cellar floor; that at the foot of said stairway is a passage of about 4 feet by 5 feet where entrance is made to the cellar; that the opening above said cellarway was at all times entirely covered, the south 9 feet thereof by two movable wooden doors attached to said building, and the balance by a permanent covering of boards about 4 1/2 feet long, nailed at one end to the side of the building, and at the other to the outer edge of said cellarway; that the entire covering, movable and fixed, sloped downward from the side of said building at an angle of about 20 degrees; that said premises were at all times occupied by the defendant Curley under a verbal lease from the defendant Pabst Brewing Company as tenant from month to month; that by the terms of said lease the defendant Pabst Brewing Company agreed to keep the building and premises in repair; that during the tenancy of said Curley, in compliance with said agreement said brewing company did from time to time make certain repairs upon said building; that said building was improperly and defectively constructed by said brewing company, in that said covering over the cellarway was so built as to make it inadequate and insufficient for the purpose for which the same was to be used; that said covering sloped as above set forth, and the fixed part thereof consisted of boards about 5 1/2 inches wide, 3/4 of an inch thick, and 4 feet 6 inches long; that said boards had no adequate bearings, but rested on two sharp edges; on the end near the house they rested on the inner edge of a 2 by 4 scantling, extending thereover about 3/4 of an inch; on the end farthest from said house they rested on the outer edge of a 2 by 12 inch plank, extending thereover one inch; that said bearings were not beveled and did not have fastened thereto any triangular wedges to which said boards could be properly secured; that said boards were inadequately fastened to said bearings by one nail at each end, which nails were improperly placed, and weakened the boards so that they were not properly secured; that said construction of said cellarway covering was neither proper, adequate, nor safe; that said defective construction rendered said boards in the reasonable and ordinary use of the covering likely to become loose, slide off their support, and be precipitated to the passage below; that said defects could have been readily discovered at the time the building was being constructed and proper inspection at any time thereafter would have disclosed said defects; that the defendant Pabst Brewing Company knew, or could have known, of said defective construction, and was negligent in failing to properly remedy said defects; that said defective condition had existed since the time of the construction of the building; that on the east side of said building is a yard 13 feet wide, entrance to which is through a gate situated east of and on a line with the front of said building; that the sidewalk at the east side of said building commenced a few feet back of said cellarway; that pedestrians entering said gate generally walked on and along said cellarway covering; that children playing in said yard sat and played upon said covering, and that the defendants knew that said covering was so used and of its defective construction, and failed to warn children playing thereon and pedestrians of the defects; that said defects in construction were not apparent to those who in the exercise of ordinary care casually used said covering; that for more than a year prior to 1912 the covering was greatly in need of repairs and that no repairs had been made for over 10 years prior thereto; that the boards and nails had become rotten and rusted, and some of the boards were for more than a year loose and in danger of falling into the cellarway; that such condition rendered the covering incapable of sustaining the ordinary and natural pressure and strain to which, under usual and ordinary circumstances, it was subjected; that the defendant Curley, lessee, in June, 1911, notified the defendant Pabst Brewing Company of the condition of the covering, and asked that the same be repaired, and on June 12, 1912, the defendant brewing company was again notified and asked to repair, but failed and neglected to make any repairs; that the defendant brewing company frequently visited the premises and knew, or should have known, of the needed repairs; that the defendant Curley neglected to warn those lawfully upon the premises of the danger of the cellarway covering; that said Annette Flood on the 3d day of July, 1912, was an infant four years of age and lived with her father immediately west of the premises occupied by the defendant Curley; that it was a custom of Annette Flood to play with the children of defendant Curley, and played upon the premises in question with the consent and at the invitation of defendant Curley; that the defendant Pabst Brewing Company frequently saw children playing upon said cellarway covering; that on the 3d day of July, 1912, said Annette Flood, at the invitation of defendant Curley, entered the premises occupied by said defendant Curley and played with the children of said Curley; that said Annette Flood, her brother, and the daughter of said defendant Curley...