Smith v. Milwaukee Builders' & Traders' Exch.

• Decision Date: 08 November 1895
• Citation: 91 Wis. 360,64 N.W. 1041
• Parties: SMITH v. MILWAUKEE BUILDERS' & TRADERS' EXCHANGE ET AL.
• Court: Wisconsin Supreme Court

91 Wis. 360

64 N.W. 1041

SMITH

v.MILWAUKEE BUILDERS' & TRADERS' EXCHANGE ET AL.

Supreme Court of Wisconsin.

Nov. 8, 1895.

Appeal from superior court, Milwaukee county; R. N. Austin, Judge.

Action by Mary E. Smith against the Milwaukee Builders' & Traders' Exchange, Max Neff, James E. Bayley, Arthur J. Bayley, and Harry F. Bayley, to recover for injuries to plaintiff caused by the falling of a brick from the top of a partially completed building. There was judgment for plaintiff, from which defendants appeal. Reversed.

This is an action brought to recover damages for injuries to the person of the plaintiff, caused by the falling of a brick from the top of the fourth story of a partially completed building in the city of Milwaukee, owned by the defendant the Milwaukee Builders' & Traders' Exchange. The accident happened on the morning of the 18th of April, 1892. At the time of the accident the defendant exchange was constructing a five-story brick and iron building, and the appellant Neff had contracted with the exchange to build, and was then engaged in building, the masonry of the building, and had completed the walls to the top of the fourth story. The defendants Bayley, who were copartners, had contracted with the exchange to put in place the structural iron for the building. Both Neff and the Bayleys were performing the work undertaken by them under separate and independent contracts with the exchange. Each of said contracts contained a provision that the contractor should well and sufficiently perform and finish his work “under the direction and to the satisfaction of Ferry & Clas, architects, acting as agents for the owner.” The contracts also contained provisions for the inspection of the work by the architect and his employés. An ordinance of the city of Milwaukee was introduced in evidence, which was in force at the time of the accident, providing in substance that any owner or contractor who should build a building within the fire limits of the city of Milwaukee, abutting upon any public sidewalk, should, after the completion of the first story of the building, cause a passageway to be laid in the front of the building, upon the sidewalk, and cause the same to be roofed at a height not less than 10 feet, and providing for the punishment for failing to comply with the ordinance. The accident to the plaintiff occurred about 8 o'clock on Monday morning. On the Saturday previous Neff had completed the walls of the building to the top of the fourth story, in readiness for the iron girders to be put in place to support the floor of the fifth story. On leaving work Saturday night, Neff's men put canvas upon the walls of the building, with loose bricks thereon to hold it in place. On Monday morning Neff's men were not at work, but the Bayleys were commencing to put the iron girders in place for the fifth story, and hoisting girders and beams to the top of the fourth story by a derrick. The plaintiff resides about a block and a half from the place of the accident, and was 30 years old. She passed along the sidewalk on Fifth street, opposite the building in question, and went to a drug store on Grand avenue, and a few minutes afterwards she returned, and while passing along the sidewalk, within about six feet of the building, a brick was in some manner caused to fall from the top of the building, and struck her on the head, fracturing the skull and severely injuring her. The plaintiff claims that all the defendants are liable for her injuries, by reason of negligence. The evidence was conflicting as to whether there were any guards or barriers placed at the north and south ends of the wall, but it was admitted that no roof had been placed over the sidewalk on Fifth street. The jury returned the following special verdict: “(1) At the time the plaintiff first passed along the sidewalk adjacent to the building on Fifth street, on the morning of the accident, had the north end of that sidewalk been guarded by due precaution against accident to pedestrians? Ans. No. (2) At the time the plaintiff first passed along the sidewalk adjacent to the building on Fifth street, on the morning of the accident, was there a barrier across the north end of said sidewalk sufficient to warn pedestrians it was dangerous to pass along said sidewalk? Ans. No. (3) At the time the plaintiff passed along the sidewalk, adjacent to the building on Fifth street, on the morning of the accident, was the south end of said walk guarded by due precaution against accident to pedestrians? Ans. No. (4) At the time the plaintiff first passed along the sidewalk adjacent to the building on Fifth street, on the morning of the accident, was there a barrier across the south end of said sidewalk sufficient to warn pedestrians that it was dangerous to pass along said walk? Ans. No. (5) Was there any plank across the north end of the sidewalk, which was moved by the men at work in hoisting the iron upon said building, before the plaintiff was injured, and before she passed along Fifth street the first time on that day? Ans. No. (6) Was the brick which fell from the building and injured the plaintiff displaced from the pier? Ans. No. (7) Was the brick which fell and injured the plaintiff a loose brick placed on canvas covering the wall or pier? Ans. Yes. (8) Was the brick which fell and injured the plaintiff caused to fall by the men who were at work hoisting the iron upon the building? Ans. No. (9) Were men there employed in the business of hoisting iron upon the building at the time the plaintiff passed along said sidewalk the first time? Ans. Yes. (10) Was the defendant the Milwaukee Builders' & Traders' Exchange guilty of any negligence or want of care which was the proximate cause of the injury to the plaintiff? Ans. Yes. (11) Was the defendant Max Neff guilty of any negligence or want of care which was the proximate cause of the injury to the plaintiff? Ans. Yes. (12) Were the defendants the Bayleys guilty of want of ordinary care which contributed to the injury? Ans. No. (14) If the court shall be of the opinion that plaintiff is entitled to recover, at what sum do you assess her damages? Ans. $5,000.” Judgment for the plaintiff against all of the defendants was entered upon the verdict, and they have appealed separately.Van Dyke & Van Dyke, Geo. E. Sutherland, and Winkler, Flanders, Smith, Bottum & Vilas, for appellants.

Austin & Hamilton, for respondent.

WINSLOW, J. (after stating the facts).

The claim made by the defendant the Builders' Exchange, the owner of the building, that Neff and the Baileys were independent contractors, seems to us well founded. It is true that in their contracts it is provided that the work is to be performed under the direction and to the satisfaction of the architects, acting as agents of the owner, but it is entirely certain from the whole contract that this is simply a reservation of the right of inspection. It is not a reservation of power to control the manner of the work, to change materials to be used, or prescribe ways and methods in which the...