Moore v. City of Milwaukee

• Decision Date: 08 June 1954
• Citation: 267 Wis. 166,65 N.W.2d 3
• Parties: MOORE, v. CITY OF MILWAUKEE (two cases).
• Court: Wisconsin Supreme Court

Page 3

65 N.W.2d 3

267 Wis. 166

MOORE, v. CITY OF MILWAUKEE (two cases).

Supreme Court of Wisconsin.

June 8, 1954.

Rehearing Denied Oct. 5, 1954.

Two actions, one brought by Harriet J. Moore and the other by her husband, Arthur L. Moore, against the city of Milwaukee, were consolidated for trial and resulted in judgments in favor of the plaintiffs entered on December 12, 1951. Recovery was sought for injuries sustained by Mrs. Moore on November 7, 1950, as she was leaving a voting booth in the city. The booth had been erected parallel to the curb line of Ivanhoe Place, an east-west street, near its intersection with North Summit Avenue. A portion of the booth protruded partially into the paved portion of Ivanhoe Place. Mrs. Moore had entered the booth by its east door and after voting proceeded to leave it by its west door. As she left the building she stepped upon a wooden platform thirty inches by thirty inches in size, the north edge of which was fifteen inches above the level of the street surface. The platform was not attached to the booth. It had been erected to the height of the floor of the booth and was immediately adjacent to the threshhold of the door. It had no guard or hand rails and was unlighted.

Mrs. Moore stepped from the threshhold to the platform. She observed some people standing at the south end of the platform because of which fact she proceeded north to step off its north end and onto the paved street. She fell upon the street and was injured. The city appeals from each of the judgments.

Walter J. Mattison, City Atty., Ewald L. Moerke, Jr., Asst. Atty. Gen., Milwaukee, for appellant.

A. L. Skolnik, Milwaukee, for respondents.

GEHL, Justice.

The actions were tried upon the theory that there had been a violation of the safe-place statute, sec. 101.06, Stats. which provides that

'* * * Every * * * owner of a * * * public building now or hereafter constructed shall so construct, repair or maintain such * * * public building, * * * as to render the same safe.'

Two contentions are made by the city, (1) that the platform may not be considered a part of the public building, and (2) that the city is not a proper party defendant.

Sec. 101.01(12), Stats. defines a public building as 'any structure used in whole or in part as a place of resort, assemblage, lodging, trade, traffic, occupancy, or use by the public, or by three or more tenants.' We have held consistently that a sidewalk area leading to a public building, although used by the public for access to and from the building, is not a structure within the meaning of the statute. Lawver v. Joint District No. 1, 232 Wis. 608, 288 N.W. 192; Bauhs v. St. James Congregation, 255 Wis. 108, 37 N.W.2d 842; Baldwin v. St. Peter's Congregation, 264 Wis. 626, 60 N.W.2d 349; Mistele v. Board of Education, Wis., 64 N.W.2d 428.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Plaintiffs' Exhibit 1, which accompanies this opinion, is a photograph showing the west exit from the booth and the platform in question. It will be observed that the platform was really no more than a pathway from the public sidewalk to the door, and that although at its south end it was at an elevation slightly higher than the sidewalk (the testimony indicates that the difference was two or three inches) it was in reality only an extension of the public sidewalk providing access to the sidewalk from the booth. It was employed by those leaving the booth just as is a sidewalk of permanent construction designed to provide convenient access from any building to a public sidewalk. A sidewalk does not necessarily consist of a walk made of concrete; it may be any place set apart at the side of a public walk for the use of pedestrians.

It is sought to distinguish the instant case from those cited by denominating the platform as a step instead of a sidewalk, and suggested that we hold that a step or steps immediately adjacent to but outside the building line is a part of a public building. The platform was flush with the threshhold of the door of the booth. It was not necessary to descend to reach it, nor was it necessary to step down until the public sidewalk was reached, and then only a matter of two or three inches.

Assume, however, without conceding, that it might be considered that the platform was a step instead of a sidewalk. The duty of the owner under the statute is to construct and maintain a public building as to render the same safe. Certainly the platform was a structure, but so were the flagstaff and the sidewalks involved in the cases which we have cited, and in each of which recovery was denied. They were not, nor was the platform in the instant case, a building or a part of one; they were not structures within the meaning of the statute.

Plaintiffs rely upon Zeininger v. Preble, 173 Wis. 243, 180 N.W. 844; Holcomb v. Szymczyk, 186 Wis. 99, 202 N.W. 188, and Kezar v. Northern States Power Co., 246 Wis. 19, 16 N.W.2d 364. We said in Hanlon v. St. Francis Seminary, 264 Wis. 603, 60 N.W.2d 381, 383, with specific reference to those cases:

'In each of them there was involved a rear proch or platform and steps all integral parts of the building and intended for use and used by three or more common tenants. These cases are distinguishable upon the facts and are not controlling here.'

Certainly it cannot be said that the platform here involved, unattached to the booth, was an integral part of the building.

We find no authority in the statutes or in the precedents for requiring or permitting us to hold that a step or steps immediately adjacent to but outside the building is a part of a building. To so hold would be an abritrary determination, judicial legislation. The statutes do not impose upon the owner any duty to maintain the premises adjacent to his building so as to render the same safe.

'While it was held in Sadowski v. Thomas Furnace Co., 1914, 157 Wis. 443, 146 N.W. 770, that...