227 Wis. 43 | Wis. | 1938
On December 27, 1936, plaintiff, ten years old, was a member of a swimming class for boys at the Janesville Young Men’s Christian Association. The class was under the supervision of employees of defendant.- The swimming pool had been equipped with a diving board per
Here, as in the case of Erbe v. Maes, 226 Wis. 484, 277 N. W. 111, plaintiff asserts that whenever the owner of a public.building is also an employer, and the building or so
“. . . Every place, whether indoors or out or underground and the premises appurtenant thereto where either temporarily or permanently any industry, trade or business is carried on, or where any process or operation, directly or indirectly related to any industry, trade or business, is carried on, and where any person is directly or indirectly, employed by another for direct or indirect gain or profit, but shall not include any place where persons are employed in private domestic service or agricultural pursuits which do not involve the use of mechanical power.”
It is our conclusion, that since the section includes within the definition of “place of employment” only places where “any industry, trade or business, is carried on” and “where any person is directly or indirectly, employed by another for direct or indirect gain or profit,” it does not apply to the premises here involved. The Young Men’s Christian Association is a religious and charitable institution, and that portion of its building in which the accident happened is devoted to the charitable purposes which the organization exists to carry out. It is quite immaterial that fees are charged to cover a portion of the charitable purposes of the organization. It is likewise immaterial that a hotel or dormitory
We are of the opinion that the instant case is not one involving a failure to maintain the building. Defendant had no obligation to furnish a diving board, or, having furnished one, to replace it during the period when it was being removed for repairs. The absence of a diving board in the brackets did not render the premises unsafe, and the situation is for all practical purposes the same as though no diving board had ever been provided. The defendant was not in any sense attempting to maintain a diving board, and the temporary improvision of a loose board for purposes of diving seems to us to either constitute 'a temporary condition having nothing to do with the structure of the building or the mere negligent misuse of equipment for a purpose for which it was not designed. The boys were negligently permitted to use equipment for diving that was not being maintained by defendant as a part of the structure for that purpose, and the injury to plaintiff was the result of negligence rather than a failure to keep a safe place. It was a tern-
By the Court. — Judgment reversed, and cause remanded with directions to dismiss plaintiff’s complaint.