Wilber v. Follansbee

• Decision Date: 22 October 1897
• Citation: 72 N.W. 741,97 Wis. 577
• Parties: WILBER v. FOLLANSBEE.
• Court: Wisconsin Supreme Court

97 Wis. 577

72 N.W. 741

WILBER

v.FOLLANSBEE.

Supreme Court of Wisconsin.

Oct. 22, 1897.

Appeal from circuit court, Milwaukee county; D. H. Johnson, Judge.

Action by Mattie E. Wilber against Jane Follansbee. From a judgment for plaintiff, defendant appeals. Affirmed.

The defendant is the owner of a block of tenements in the city of Milwaukee. It was occupied by a considerable number of tenants. The plaintiff had rented and occupied a flat on the second floor, which she used both for a residence and a place of business. A stairway which opened from the street extended up through the building to the third and fourth floors. This was used, in common, by all the tenants of the building, as occasion required. There was also a “back stairs” opening upon an alley, which the plaintiff could use. There was a landing at the top of the stairs, which communicated with the plaintiff's apartments through a short hall. The defendant, without consulting her tenants, was engaged in making quite extensive improvements, remodeling, and repairs of the building, for her own purposes. A story was added to the height of the building, and changes, remodeling, and repairs of the halls and stairways were made. The stairs and hallways became littered and obstructed by rubbish and débris, from the work which was going on in making the repairs, to such a degree that they became unsafe and dangerous to persons using them. The plaintiff, in attempting to pass from her apartments to the street, slipped or stumbled upon some rubbish in the hallway, fell down the stairway, and was injured. There was a special verdict, as follows: “Was the plaintiff the tenant of the defendant at the time in that behalf alleged in the complaint, and in the building described in the complaint, at the time of her injury? Answer: Yes. (2) Was the place where the plaintiff claims to have been injured commonly and necessarily used by the plaintiff and the other tenants of the defendant in the same building, for the purpose of entering and leaving the said building? Answer: Yes. (3) Was such place in a reasonably safe condition for passage and repassage at the time of the plaintiff's alleged injury? Answer: No. (4) If, in answer to the last interrogatory, you say that such place was not in a reasonably safe condition for passage and repassage, was such condition the result of the want of ordinary care on the part of the defendant in the matter of providing safe means of entrance and exit for her tenants in said building? Answer: Yes. (5) If you say that said place was not in a safe condition, and that its condition was the result of a want of ordinary care on the part of the defendant, was the condition of said place and the failure of the defendant in the matter of the care thereof the proximate causes of the plaintiff's injury? Answer: Yes. (6) If you say that the place where the plaintiff fell was not in a reasonably safe condition for passage and repassage, was such condition known to the defendant, or could she, in the exercise of reasonable care, have known the same at the time of the plaintiff's injury? Answer: Yes. (7) Was the plaintiff guilty of any want of ordinary care on her part, which proximately caused or contributed to the injury of which she complains? Answer: No. (8) If the court should be of the opinion that the plaintiff should recover, in what sum do you assess her damages? Answer: $1,450. (9) Was there, at the time of the plaintiff's injury, a safe and reasonably convenient means of exit from the rooms of the plaintiff to the street, other than by way of the stairway down which the plaintiff fell? Answer: No.” The plaintiff had judgment on the verdict, from which the defendant appeals.Winkler, Flanders, Smith, Bottum & Vilas, for appellant.

W. C. Quarles, for respondent.

NEWMAN, J. (after stating the facts).

The appellant assigns errors as follows: (1) The rejection of her offer to prove that the work of improvement and repairs was being done by an independent contractor. (2) The refusing to admit in evidence the contract under which the work was being done. (3) The admission of testimony to show the condition of plaintiff's health before and after the accident, without showing any causal relation between the accident and her alleged altered condition of health. (4) The giving of several instructions excepted to. (5) Refusing to submit for the special verdict questions requested by the appellant. (6) The verdict is not sufficient to support the judgment. (7) The refusal to set aside the verdict and grant a new trial.

1. On this point the case is ruled by the recent case of Wertheimer v. Saunders, 95 Wis. 573, 70 N. W. 824. In that case it was held, on full consideration, that the landlord, in making repairs and improvements to the demised premises, owes a duty of reasonable care to the occupying tenants, which he cannot escape by placing the work with an independent contractor; especially if the work to be done is attended with danger to the tenants. Evidently, the accomplishment of the improvements and repairs contemplated would render some degree of danger imminent to such as should use the stairways and halls during its progress. So, the fact that the work was being done by an independent contractor was entirely irrelevant to the question of the defendant's liability. This...