Peake v. Buell

• Decision Date: 20 June 1895
• Citation: 63 N.W. 1053,90 Wis. 508
• Parties: PEAKE v. BUELL.
• Court: Wisconsin Supreme Court

90 Wis. 508

63 N.W. 1053

PEAKE

v.BUELL.

Supreme Court of Wisconsin.

June 20, 1895.

Appeal from superior court, Milwaukee county; J. C. Ludwig, Judge.

Action for damages by W. A. Peake, as administrator of the estate of Peter F. Parmalee, deceased, against Thomas W. Buell, for negligently causing the death of his intestate. From an order overruling his demurrer to the complaint, defendant appeals. Reversed.

The complaint alleges, in effect, that the defendant, September 7, 1893, owned the five-story brick store building, with basement, therein described, which was newly built; that the same was then occupied and used as a wholesale and retail furniture store, salesroom, and warehouse by tenants of the defendant; that some parts thereof remained unfinished and unplastered; that September 7, 1893, the deceased was a plasterer and a stone mason by trade; that on that day the deceased, together with this plaintiff, who were members of the same firm, met the defendant, and entered into conversation with him about plastering on the third and fourth floors of said building; that the defendant stated that the rooms on the third and fourth floors were then unplastered, and that he had a job of plastering there to be done; that he then and there invited the deceased and this plaintiff to go with him into said store building, and look at and examine said job of plastering to be done therein, and to make a bid thereon; that the deceased, in company with the defendant and this plaintiff, proceeded up several flights of stairs in said building, until they reached an open space or landing at the head of said stairs on said fourth floor; that said place of landing is about 8 feet square, with a door at the right-hand side as you go forward, opening into a large storeroom on said fourth floor, and that there is a narrow corridor leading back from said space or landing on said right-hand side a distance of about 20 feet to a second door, which also opens into said storeroom on said fourth floor; that in the east wall surrounding said space or landing, and directly in front of and before the stairway, there is a large window, composed of an upper and lower sash, each sash containing a single pane of glass, 36 inches square in size, said sash being hung on pulleys, and weighted, and being easily raised or lowered, said sash being in all 6 1/2 feet in height by 3 1/2 feet in width; that the lower sill of said window is about 4 feet above the level of the floor of said space or landing; that said window opens into a large elevator shaft, in which there was in use and running at the time a large freight elevator, constructed and placed therein by the defendant; that said elevator shaft is 6 1/2 by 8 1/2 feet in dimensions, and is well lighted, having windows opening into it from the outside on the rear of said building, and also, in addition thereto, receiving light through the wire doors opening into said elevator from the several floors through which it passes, on all of which said floors there is good and sufficient light; that said elevator shaft, looking through said window, has the appearance of a large unoccupied room within; that September 7, 1893, said deceased, following after the defendant and this plaintiff to the space or landing at the head of the stairs on the fourth floor, and going and being there for the purpose of examining said building and storerooms therein for the purpose of making estimates and bids upon said job of plastering therein, as aforesaid, without knowledge that the room appearing within through said open window was a portion of said elevator shaft, said window being then and there open, and the lower sash raised to a sufficient height, looked through said opening; that at that time, and then and there, the said freight elevator in said elevator shaft was being operated by the defendant's tenants,...