Kurtz v. Pauly

• Decision Date: 27 October 1914
• Citation: 149 N.W. 143,158 Wis. 534
• Parties: KURTZ v. PAULY ET AL.
• Court: Wisconsin Supreme Court

158 Wis. 534

149 N.W. 143

KURTZ

v.PAULY ET AL.

Supreme Court of Wisconsin.

Oct. 27, 1914.

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

Action by Elizabeth Kurtz against L. C. Pauly, Jr., and another. From a judgment of the circuit court reversing a judgment of the civil court in favor of the plaintiff and dismissing the complaint upon the merits, the plaintiff appeals. Affirmed.

Timlin, J., dissenting.

This is an action to recover damages for personal injuries sustained through the falling down of a small balcony or platform located at the rear of an upper flat.

On August 2, 1913, the plaintiff, a widow, with her family of three children, occupied the upper flat at 633 Seventh street, in the city of Milwaukee, of which the defendant Caroline Pauly was the owner. The defendant L. C. Pauly, Jr., had full charge and control over the handling and renting of the property. Attached to the rear of the building was a small platform or balcony with a railing around it. The plaintiff had used this platform as an airing place for clothes, and on the day of the accident she had a mattress upon it, and when she and her son endeavored to bring in the mattress the platform gave way and fell to the ground causing injuries to the plaintiff. The balcony was from 12 to 14 feet from the ground. It had been repaired three years prior to the time of the accident. There is a conflict in the testimony as to the condition of the material composing it; the defendant L. C. Pauly, Jr., and others testifying, in effect, that the material was in good condition at the time of the accident; while Fred W. Massman, an inspector of buildings in the city of Milwaukee, testified that, in his opinion, the timbers were not in good condition, and that some of the nails were rusted and corroded and pulled out, and further that the supports had too many nails driven through them, which tended to weaken them. Because of the injuries the plaintiff was incapacitated for work for over two months, and has not been able to earn her former salary since.

This action was first brought in the civil court of Milwaukee county and tried to the judge and jury, and the jury found by special verdict: (1) That the balcony was not reasonably safe for the purposes for which it was intended when the premises were leased to the plaintiff; (2) that the defendants did know of such unsafe condition at the time of leasing the premises; (3) that neither the defendants nor any person for them warned the plaintiff of the unsafe condition of the balcony; (4) that such failure to notify the plaintiff of the unsafe condition of the balcony was the proximate cause of the injury; (5) that the plaintiff, in the exercise of ordinary care, could not have discovered the unsafe condition of the balcony; (6) that the plaintiff was not guilty of any want of ordinary care that proximately contributed to her injuries; (7) that the plaintiff was damaged to the extent of $1,100. The civil court awarded the plaintiff judgment on the special verdict for the damages found and for costs, and denied defendant's motion for judgment in their favor.

The defendants appealed to the circuit court of Milwaukee county, and from an order of the circuit court reversing the judgment of the civil court and ordering judgment dismissing the plaintiff's complaint upon the merits with costs and from the judgment entered pursuant to such order, the plaintiff appeals.Lehr, Kiefer & Reitman, of Milwaukee (J. Elmer Lehr, of Milwaukee, of counsel), for appellant.

Leon B. Lamfrom, of Milwaukee (Alvin Tighe, of Milwaukee, of counsel), for respondents.

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

[1] The jury by their special verdict found that the balcony was not in a reasonably safe condition for the uses for which it was intended when the plaintiff leased the premises, and that the defendants had knowledge of this unsafe condition at the time they leased the premises to the plaintiff. The trial judge of the civil court refused to set aside these findings of the jury, and awarded plaintiff judgment for the recovery of the damages found. The circuit court on appeal set aside this judgment, upon the ground that the evidence reported in the record did not sustain the findings of the jury that the defendants had knowledge of the unsafe...