224 Wis. 455 | Wis. | 1937
The plaintiffs ground their action on, (1) common-law negligence, and (2) violation of the safe-place statute.
(1) (a) One basis of the claim that the evidence set out in the statement of facts preceding the opinion raises, a jury
(b) It is the settled law of this state that a tenant takes premises in the condition in which they are when he leases them, and the landlord is not liable to the tenant for injuries sustained through their want of repair unless he has contracted to repair them, or unless the defect be a concealed one known to the landlord and not disclosed to the tenant and not discoverable by the tenant by exercise of ordinary care. Kurtz v. Pauly, 158 Wis. 534, 538, 149 N. W. 143. There is no evidence that the landlord in the instant case contracted
The plaintiffs in support of their claim of common-law negligence rely on a statement in Flood v. Pabst Brewing Co. 158 Wis. 626, 631, 149 N. W. 489, as follows :
“. . . That a landlord is liable to a tenant and the invitee of a tenant for injuries received through defects in construction of a building rendering it dangerous, and which dangerous condition was known to the landlord when he executed the lease and not known or should not have been known to the tenant or invitee, is quite well settled.”
Of course, if the method of fastening the post was a structural defect, the landlord must be held to have known that it existed. But if it was and was dangerous, this was or should have been known to the plaintiffs, as the method of construction was obvious to sight. Whether the method was a structural defect is discussed under (2).
(2) The plaintiffs contend that the building that comprised their apartment is a public building within sec. 101.01 (12), Stats.; that the evidence warrants inference by the jury that toenailing-the post constituted a structural defect; and that the statute makes the owner responsible for injuries to tenants that are caused by such defects. The statute cited includes, among public buildings, “any structure used in whole or in part as a place . . . of . . . trade ... by the public, or by three or more tenants,” and sec. 101.06 requires that “every
The building comprising the flat occupied by the plaintiffs must be conceded to be a public building because the first story comprised two places of trade. Whether the railing was as safe as the nature of the building would reasonably permit would perhaps be a jury question, if not being safe under the statute of itself rendered the defendant liable. But in case portions of a public building are rented to tenants, maintenance in unsafe condition of the portion so rented to which the public does not have access does not bring the portion so rented within the statute. Gobar v. Val. Blatz Brewing Co. 179 Wis. 256, 191 N. W. 509. However, it was held in Bewley v. Kipp, 202 Wis. 411, 414, 233 N. W. 71, that the safe-place statute “does require a building occupied by three or more tenants to be structurally safe.” It was also held at page 415 that “a tenant in a public building enjoys no freedom by reason of . . . [the safe-place statute] from the duties which devolve upon tenants of other buildings,” and under the rule stated in (1) above, the duty of making repairs not due to structural defects falls upon the tenant. It was also held at page 415 that “whether the landlord or the tenant was responsible for its defective condition depends upon whether the defect was structural in its nature or whether it was the result of ordinary wear and tear.” Under the rules here stated, assuming that the defect here involved was structural, the safe-place statute would apply if the lower floor of the building had been occupied by a lessee instead of by the owner, as the building would then have been occupied by three tenants. The owner was an occupant of the build
To show that the defect is structural, the plaintiffs rely upon the testimony of their witness, a builder and contractor, that—
“It is bad building practice to fasten uprights of a porch to the floor merely by toenailing, because toenailing will not hold the post to the floor. Good building practice to make a building safe would require a bracket to be nailed or attached to the post on an angle to the floor and screwed into the post, or into a plate and fastened to the post, also to the floor. Good building practice would be to place a piece of lead between the post and the floor to prevent decay. ... In my opinion a second-story porch constructed as this porch was merely by having the newel post toenailed to the floor is unsafe construction.”
The plaintiffs are doubtless correct in their contention that this testimony, notwithstanding that there is evidence of another builder and contractor to the contrary, entitled them to go to the jury under the safe-place statute, unless we can say that by common knowledge such construction is the common practice and therefore cannot be considered to be unsafe. That it is the common practice is a matter of common knowledge. It is true that conceivably the construction might be
By the Court. — The judgment of the circuit court is affirmed.