Kinney v. Luebkeman

• Decision Date: 09 January 1934
• Citation: 252 N.W. 282,214 Wis. 1
• Parties: KINNEY v. LUEBKEMAN ET AL.
• Court: Wisconsin Supreme Court

214 Wis. 1

252 N.W. 282

KINNEY

v.LUEBKEMAN ET AL.

Supreme Court of Wisconsin.

Jan. 9, 1934.

Appeal from a judgment of the Circuit Court for Eau Claire County; James Wickham, Circuit Judge.

Action by Alice Kinney against Chris Luebkeman, Minnie Luebkeman, and Nick Sakos. Judgment in favor of plaintiff against the last named defendant, and judgment for the other defendants, and plaintiff appeals.--[By Editorial Staff.]

Affirmed.

The action, commenced February 26, 1932, is to recover for personal injuries and is grounded on alleged failure of the owners of a building occupied as a restaurant and the operator of the restaurant to maintain the building as required by the safe-place statute, section 101.06, Stats. From a judgment entered November 28, 1932, in favor of the defendant owners, the plaintiff appeals.

The plaintiff, while in a restaurant, was injured in falling down basement stairs while on her way to a toilet. She was a stranger to the premises. The stairhead was entered through a door opening from the dining room floor of the restaurant and was equipped with an electric light in the ceiling. The jury found that the light was not on as the plaintiff entered the stairhead. There is no dispute that, if the light had been turned on at the stairhead, the stairway would have been sufficiently lighted to render it safe. The switch by which the light is turned on is located on the wall inside the stairway thirty-seven and a half inches from the door leading to the stairhead and the first step of the stairway is twenty-five inches from the door. There was no guard rail from the door to the first step of the stairway but a proper railing from thence down. The toilet was commonly used by customers of the restaurant. The plaintiff inquired of a waitress the way to the toilet and was directed to the door to the stairhead. While the plaintiff was “feeling around” to find the switch to turn on the light, she fell down the stairs and sustained the injuries of which she complains. The operator of the restaurant, the defendant Sakos, leased the premises from the owners, the defendants Chris Luebkeman and his wife, Minnie.

By the terms of the lease the lessee accepted the premises as they were at the time of the execution of the lease, and was obligated thereby to maintain the premises in good repair and to make any alterations required at his own expense. The lease expressly exempted the lessor from liability for any damage “done or occasioned by or from any * * * fixture or device * * * in the building, and any damage arising from negligence of the lessee.” By special verdict the jury found as to each defendant that there was “a failure of duty to furnish the plaintiff a stairway as free from danger as the nature of the premises would reasonably permit, and that such failure of duty was a cause of plaintiff's injuries.” The jury found the plaintiff not negligent, and assessed her damages at $1,500. The court changed the findings of the jury as to failure of duty by the defendant owners and entered judgment in their favor and against the defendant Sakos.Farr & MacLeod, of Eau Claire, for appellant.

Ramsdell, King & Linderman, of Eau Claire, for respondents.

FOWLER, Justice.

The plaintiff claims that the trial court erred in changing the findings of the jury as to the defendant owners' failure of duty and that she is entitled upon the verdict to judgment against the owners for the damages assessed by the jury. She also claims that she is entitled to judgment against the owners upon common-law principles upon the jury's findings.

The learned trial judge was “* * * of opinion that any failure of duty to make the premises safe related to a detail concerning the use and occupation of the premises by the tenant Sakos, which under the terms of the lease and under the law was a duty on the part of the tenant and not a duty on the part of the landlord or the landlord's agent, and that there is no evidence to support the answers * * *” to the questions as to the owners...