Peake v. Buell

90 Wis. 508 | Wis. | 1895

Cassoday, J.

The portions of the complaint alleging, in effect, that it was the duty of the defendant to erect, put up, and maintain guards, locks, bolts, bars, defenses, and ¡protection over and above the window mentioned and the opening into the elevator shaft thereby caused, and that he disregarded and neglected such duty by allowing the window to remain open and unguarded, must be regarded as the pleader’s conclusions of law from the facts therein alleged. While a general demurrer is an admission of all facts stated in the pleading demurred to, yet it does not admit such mere conclusions of law. Pratt v. Lincoln Co. 61 Wis. 62, and eases there cited.

Counsel for the plaintiff is undoubtedly correct in eontend-ing that “ where the owner of land, expressly or by implication, invites others to come upon his land, if he permits anything in the nature of a snare to exist thereon, which results in injury to one availing himself of the invitation and who at the time is exercising ordinary care, such owner is answerable for the consequences.” Beck v. Carter, 68 N. Y. 283. Counsel has cited numerous other cases to the same effect, notably Elliott v. Pray, 10 Allen, 378, where there was a trap door negligently left open on the way leading to a stairway; and Parker v. Portland Pub. Co. 69 Me. 173, S. C. 9 Cent. L. J. 108, where the door leading from a dark room into an elevator shaft had been left open after business hours; and, although the judgment against the defendants was reversed for error, yet it was held, in effect, that defendants were bound to use ordinary care in keeping the premises and the usual passageway to them safe for the access of all persons exercising ordinary care in coming to them at seasonable hows by their invitation, express or implied, or for any purpose beneficial to them. If, instead of the window in question, there had been a door leading" from the hallway into the elevator shaft, and that door had been left open, and the deceased, while in the exercise of ordinary care, had, by some inadvertence, stepped into the elevator shaft and been injured, then we would have hadi the question presented which was involved in some of the-cases relied upon. Here the lower sill of the window in question was about four feet above the level of the floor in the hallway where the deceased stood when he' put his head through the window. Had he kept wholly within the walls of the hallway, he would have remained free from danger. True, he was invited by the defendant to inspect certain unfinished rooms beyond the hallway, with the view of contracting to do certain labor therein. Of course, the invitation included an invitation to pass through the hallway in question, on his way to such rooms; but such invitation to-the hallway was .necessarily limited by the wall between the elevator shaft and the hallway. It included no express or implied invitation to thrust his head or Ms hands through the window into the elevator shaft. He could only do that by intending to do so, not by mere inadvertence or neglect. The opening through the window was sufficiently high to prevent injury to those merely using the hallway as a passageway. Injury could only be inflicted by the voluntary exposure of some part of the person through the opening. It may be, as contended, that the moving elevator which inflicted the injury was out of sight, and hence that the danger was concealed from those. inside the hallway. Nevertheless, it was a danger outside of the hallway into which the deceased had been invited. The invitation to the hallway gave him no license to protrude himself through the window. The elevator was operated by the defendant’s tenants, and not by him. The defendant owed the deceased no duty in respect to the operation of the elevator. To constitute actionable negligence, the defendant must be guilty of some wrongful act or breach of positive duty to the plaintiff. Griswold v. C. & N. W. R. Co. 64 Wis. 652; Cole v. McKey, 66 Wis. 510; Dowd v. C., M. & St. P. R. Co. 84 Wis. 116; Goff v. C. R. & M. R. Co. 86 Wis. 245. After careful consideration, we are forced to hold that the complaint fails to state facts constituting such wrongful act or breach of duty.

By the Oowrt.— The order of the superior court of Milwaukee county is reversed, and the cause is remanded for further proceedings according to law.