| Wis. | Oct 14, 1942
Action for personal injuries commenced April 30, 1940, by Edith Gokey and her husband, Charles Gokey, against Electric Household Utilities Corporation, Elmer C. Dobratz, and Frank Druml. Judgment for plaintiffs. Defendants appeal.
Plaintiffs resided in a building containing sixteen apartments owned by Frank Druml. In a basement laundry of this building was a meter washer installed by defendants Dobratz and Electric Household Utilities Corporation pursuant to a contract with the owner under which they installed the machine, kept it in repair, and collected money inserted by the tenants. The machine was attached to the building only by a cord plugged in a wall socket. On the Monday prior to the accident the machine when used by another tenant of the building was found out of repair; the wringer swung around so as to endanger anyone working at the machine. This tenant notified Dobratz and also Mrs. Gokey. On the next Thursday, which was Mrs. Gokey's regular washday, she went down to the laundry and, seeing the machine apparently in good repair, started to use it. The wringer swung around and struck her in the head, rendering her unconscious and resulting in injuries to her brain. Plaintiff was confined to bed for about two weeks, was treated by a physician for approximately one year, and at the time of the trial complained of dizzy spells and headaches. there was some involvement of the cranial nerves. The jury found the defendants guilty of negligence under the safe-place statute and also found defendant Dobratz guilty of negligence under the common law. They acquitted plaintiff Edith Gokey of any *387 contributory negligence and granted her $3,500 damages and her husband $200. From a judgment on the verdict the defendants appeal. The facts as established upon the trial and now presented on appeal are that respondent Edith Gokey, a resident in a large apartment building, entered the basement laundry as she had a right to do. A washing machine was there installed by permission of the owner for the use of the tenants. The machine was placed there by Dobratz and the Electric Household Utilities Corporation (hereinafter referred to as the "corporation"), two of the appellants, under an arrangement which fixed responsibility upon them for the maintenance of the machine. Their contract with the owner, appellant Druml, limited his responsibility to furnishing a room and power and to giving them access to the building to service the machine and to solicit the patronage of the tenants. Title to the machine was in the corporation and the money inserted by the tenants was divided by Dobratz and the corporation, Dobratz getting twenty-five per cent and the corporation seventy-five per cent. Advertising and solicitation of the tenants and instruction in the use of the machine were to be handled by the corporation and its agent Dobratz.
The jury found that the index pin controlling the movement of the wringer and the spring holding the pin in place were broken; that Dobratz failed to exercise ordinary care with respect to keeping the machine in an adequate state of repair; that such neglect and failure was an efficient cause of the injury to respondent; that respondent Edith Gokey exercised ordinary care for her own safety. There was also a finding that all the appellants were guilty of a violation of the safeplace *388 statute. There was no question but that Dobratz was the agent of the corporation.
Upon this state of the record the judgment must be affirmed as to Dobratz and the corporation but reversed as to appellant Druml. The trial court erred in applying the safeplace statute to this situation. It is settled that the obligation to furnish a safe place placed upon an owner of a public building under sec. 101.06, Stats., is limited to structural defects. Jaeger v. Evangelical Luth. Holy Ghost Cong.
Appellants argue that Mrs. Gokey's conduct bars her recovery but this contention cannot be sustained. Although she had been informed early in the week of the condition of the washing machine, she had reason to believe, as Dobratz testified, that it would be promptly repaired. She cannot be said to have been so aware of the danger that she assumed the risk as a matter of law. Furthermore, appellant by failing to ask that a question on this be included in the special verdict is not now in a position to raise the point for the first time in this court. Meshane v. Second Street Co.
No reason appears for changing the jury's assessment of damages.
By the Court. — Judgment reversed as to Druml, affirmed as to Dobratz and the Electric Household Utilities Corporation.