12 N.W.2d 683 | Wis. | 1943
This action was commenced on August 27, 1942, by John M. Flynn, plaintiff, against Chippewa county, defendant, to recover for damages sustained as a result of structural defect of the county jail premises. The action is grounded upon the safe-place statute. The action was tried to the court without a jury. Findings of fact and conclusions of law were duly made and entered and judgment ordered for defendant on February 5, 1943, dismissing plaintiff's complaint. The material facts will be stated in the opinion. *456 The facts in this case are not in dispute. Plaintiff was committed to the county jail of Chippewa county to serve a sentence for nonsupport. The injury to plaintiff occurred during his incarceration. The county jail faced south. In the front of the building are the living and business quarters of the sheriff. In the rear of the building are the cells for prisoners. A stairway inside the jail portion the structure leads "to the basement which extends only under the front portion of the building. In the basement is a furnace room with exit or stairway leading to an inclosed yard. Some prisoners, including plaintiff, are sentenced to hard labor which is done in this yard. The only way to reach the yard is to walk down the stairway from the cell block into the basement, go through the furnace room and up the stairway leading outdoors. Plaintiff and other trusties were allowed the liberty of going from the jail block into the basement at will and also did chores about the building such as carrying ashes outside from the basement exit. They made a practice of using the furnace room as a lounging room.
On January 12, 1942, plaintiff, who had been lounging in the furnace room, went up the exit stairway for the purpose of "getting a breath of air." In attempting to secure the door at the top of the stairway by pulling it and fastening it from the inside, the door handle gave way and he fell down the stairs, sustaining injuries to his foot. The stairway had no railing, platform, or lights, and concededly violated the safety orders of the industrial commission. The amount of damages was stipulated.
Upon the foregoing facts the trial court held that the portion of the building where the injury occurred was not a public building and that plaintiff was a trespasser while in and about the lounging room. *457
Sec. 101.06, Stats., requires every owner of a public building to construct, repair, and maintain it so as to render it safe. Sec.
In Sullivan v. School District,
It is clear enough therefore that under the statute as construed in the Heiden Case, supra, a county is liable under the safe-place statute. The case is quite different from Holzworthv. State,
The important question is whether the portion of the jail involved here was a public building. We hold that it was not. The wording of sec.
"But the duty of the owner to maintain in a safe condition a building that is a public building under the statute extends only to such parts as are used by the public or by tenants in Common.
The portion of the jail in which the injury occurred was not maintained as a public building. The public was, in fact, excluded from that portion of the structure. It was not even maintained for the use of prisoners although the practice of allowing some of the prisoners to lounge in the furnace room might give color to the argument that plaintiff was not a trespasser. If, however, the portion of the building here involved is not a public building, plaintiff's status as a frequenter or an invitee is wholly immaterial.
It appears from the facts that some of the prisoners were required to use the stairway and door in carrying ashes and performing other assigned duties. From this it is suggested that the place of injury was a place of employment. This contention was decided by the court adversely to plaintiff inWaldman v. Young Men's Christian Asso.
The foregoing requires the conclusion that plaintiff is without remedy under the safe-place statute.
By the Court. — Judgment affirmed. *459