206 Wis. 100 | Wis. | 1931
The action is to recover for injuries sustained by the plaintiff in falling in the toilet room of a theater, the stalls of which were in line on different levels, four on each. The plaintiff entered on the lower level. The lower stalls were all full, the higher empty. In passing to the empty stalls the plaintiff stumbled over the step up to their level. She had two small grandchildren with her, one close ahead and the other close beside her. The room was well lighted but only with ceiling lights. The step was in an open arch.
The action is grounded on the safe-place statute. The jury found violation of the statute because of (a) the step between the two parts of the room; (b) having the two parts of the room on different levels; and (c) not having a light in the step; and acquitted the plaintiff of contributory negligence. Judgment was entered on the verdict for the damages assessed.
The only question raised by defendants is that a verdict should have been directed because the evidence 'showed as matter of law that the presence of the step was not a violation of the statute. The statute, sec. 101.06, reads:
. . . “Every owner of a . . . public building . . . shall so construct, repair or maintain such . . . public building, and every architect shall so prepare the plans for the construction of such . . . public building, as to render the same safe.”
Sec. 101.01 provides that the term “safe” as used in sec. 101.06 in reference to public buildings means “such freedom from danger to the . . . safety of . . . the public . . . as the nature of the . . -. public building will reasonably permit.”
Defendants’ counsel urge that independent of other considerations it should be held upon the physical situation above stated that the step did not render the place unsafe. Wilson v. Evangelical Lutheran Church, 202 Wis. 111, 230 N. W. 708,
Counsel urge that because the owner engaged an architect to prepare the plans for the enlargement of the toilet facilities by adding the four stalls on a different level that it cannot be held guilty of negligence. Although the statute proclaims that “every architect shall so prepare plans for the construction of . . . such public buildings as to render the same safe,” the duty of rendering the place safe is primarily and positively placed on the owner, and that he procures an architect does not relieve him from his obligation in that regard.
It is contended that because the changes made do not run counter to the provision of the building code of the city of Milwaukee or the orders of the Industrial Commission governing the matter of steps, all which were introduced in evidence, the defendants cannot be held liable. This is untenable. Violation of a provision of an ordinance or order of the commission would doubtless impose liability under the statute, in absence of contributory negligence, unless the provision should be held unreasonable as matter of law. But it does not follow that if no provision is violated there is no liability. Ordinances or orders can hardly be framed to cover every conceivable situation. Those in evidence relate to the dimensions and surface of steps, not to their location. In absence of an order applicable to the situation involved, as stated in Wilson v. Evangelical Lutheran Church, supra, “The question presented ... is one for the jury as to whether or not the premises were so constructed and maintained as to be reasonably safe.” And it may be noted that no violation of ordinance or order was involved in Hommel v. Badger State Inv. Co., supra.
Counsel for defendants cite several common-law cases in which similar situations have been held not to create liability
By the Court. — The judgment of the circuit court is affirmed.