*1 аnother, vs. Respondents, Baldauf Wannmacher Appellant.* Corporation, 2, 1952. 5—December November 31, 1953. 6—March March * opinion Rehearing granted, post, p. on rehearing, 539b. *5 Quarles, there was a brief & by Spence the appellant
For Kleis, and Arthur Wick- H. attorneys, Quarles Raymond and counsel, Milwaukee, all of and S. Gibbs and Richard ham Wickham, Gibbs, Mr. and Mr. Kleis. Mr. by oral argument a brief Timmer- George there was by For respondents Kent Michael- Kivett and W. Austin W. man, attorney, Milwaukee, Mr. counsel, oral argument all son Mr. Kivett. Timmerman
529 of whether This the Currie, appeal presents question J. the are entitled to their causes of action plaintiffs maintain landlord, of against the defendant the contention it being counsel for said is on the liability defendant there no part of the landlord as a matter of law.
While counsel that Mrs. Wannmaсher appellant’s contends at the of a or time accident a and not licensee trespasser we frequenter, will for assume the of purposes opinion, issue, without she was not deciding trespasser but a and' had a frequenter, lawful be where she was right at the she time fell through trap-door opening.
It is clear that at common law the existence of does not constitute a in nuisance or defect and premises a landlord cannot be held falls liable to one who through in the trap-door injured and opening posses- sion and under the control of a tenant. v. McAvoy Morrison 626; 7 70 v. (1902), Cal. Pac. Hermann Unrep. Lyman 862; 203 Minn. N. v. 280 W. and (1938), Torpey Sanders Div. 289 N. Y. App. 532. Supp. However, counsel for contend that the plaintiffs defendant case, landlord the instant failure to enclosethe trap-door with a violated statute opening railing, (sec. 101.06, certain of Stats.), orders in- safety Wisconsin commission, dustrial and provisions building-code Milwaukee, ordinances of of and city predicated plain- tiffs’ recover right to landlord these against upon grounds.
We will first from approach of problem standpoint 101.06, whether statute the safe-place inde- (sec. Stats.), order of the Wisconsin any industrial pendently safety ordinance, commission or does city on the impose liability defendant landlord this instance. 101.06, Stats.,
Sec. reads as follows: shall furnish “Every employer employment which shall be for therein safe and shall furnish a employees place which shall be safe for therein employment and employees de safety for thereof shall furnish and use and frequenters methods and vices and shall and use adopt and safeguards, employment render such processes reasonably adequate other places thing and shall do employment safe, every life, health, safety, reasonably necessary protect Every employer welfare of and and frequenters. such employees build or every place employment public owner of construct, repair, now shall so ing or constructed hereafter building, maintain such place employment public the construction so the plans architect shall every prepare for to render *7 as place employment public building, of the same of supplied.) (Emphasis safе.1’ to While a door when closed no hazard presents establishment, the of situa- a store or other business patrons left in a floor area tion from the door resulting being open to which are access dangerous is permitted highly frequenters in far and renders the as a tenant unsafe. So pos- session, Pulos, the is there is no such as defendant concerned doubt but that he be liable on the of viola- held may ground of if a falls into tion statute frequenter safe-place Is liable the landlord-owner also ? While unguarded opening. 101.06, Stats., at first blush the words sec. an requiring of “owner” “maintain” a of to so or public place employment be “as to render same would seem to inclu- building safe” sive to on landlord for impose liability enough damages of an sustаined the tenant into such un- by patron falling nevertheless, such a seem result would most guarded opening, harsh in of the fact that the view landlord was out posses- sion and had no control over action of the tenant in closed either to the door when failing keep patrons were about, or A review of effectively to guard opening. earlier decisions of court the statute neces- construing reach the correct conclusion. sary order at counsel as to whether the tenancy Opposing disagree from year, the time the accident was one month year of these which two to month. We deem to immaterial LO co types existed tenancy inasmuch as the landlord at the time of the accident was not out of but had no only possession right possession because no notice to terminate the tenancy 234.03, 234.07, under either Stats., sec. or sec. been had giv en. While we held Johnson v. Prange-Geussenhainer Co. 723, 2 (1942), Wis. N. W. that a on (2d) duty of the landlord to part make carries with it a repairs right of entry and control over the leased there premises, is no claim made that the landlord in the instant case had any duty to repair the terms of the imposed by leasing arrangement. In the absence of such duty the landlord had no repair, right Tenant, or control. entry 32 Am. Jur., Landlord and 186, sec. p. 196.
In Freimann v. Cumming 185 Wis. N. W. to recover plaintiff sought from the defend- ant for personal caused the defective injury condition stair in a top office two-story on the building, ground the defendant was liable therefor “owner” under statute. Prior to the accident the defendant had sold the premises under land contract and the vendee was pos- session when plaintiff This injured. court held that *8 defendant was not statute, liable under the and safe-place stated : (p. 91) the “Considering and language general of this purpose statute, we now hold that in order to a such place liability
as is here claimed against one as the owner of such premises there must exist in such the to person right present possession control present or dominion thereover so that such person may exercise the lawfully rights to him necessary permit enter properly the upon in premises order to such perform an ever-present as is fixed duty this statute. A by present right is possession in involved the idea a necessarily present duty make repairs changes.” the While case of Freimann v. Cumming, supra, passed the a upon landlord, of vendor liability and not a under the statute, seem to apply the same would
safe-place principle Luebke In v. cases of a landlord. involving liability Kinney 282, man N. this court did 214 Wis. 252 W. in Freimann v. Cumming the announced rely upon principle a a to hold land who denying recovery plaintiff sought lord for the statute. liable under injuries personal In the latter restaurant oper case plaintiff, patron tenant, her ated while on fell down basement stairs by way toilet, to a establish and the defect relied was upon liability the failure to an electric turned on. The landlord have light had there no was light ceiling dispute provided that, stairhead, but if the had been at the turned on light would have been to render it stairway sufficiently lighted safe. This court in its said opinion 5) : (pp. “. . . where the to render a only thing required safe place is maintenance on or continuous of an turning electric current to electric sufficient to render light on, safe when the current is and the are place oc- a tenant who is business therein cupied by conducting within a to make within mean- public building place statute, the rests of the ing performance duty upon . . . tenant not the landlord. upon in the case had no “The owners instant such possession and no such of control or ever-present right premises, as to dominion thereover render them for either responsible maintenance of оr for on the constant the light turning light was in use.” whenever stair 99, 202 186 Wis. N. Szymczyk (1925), In Holcomb v. W. on a wooden injured by falling plat the plaintiff the rear level which entrance second-story upon form at two-story of a four-apartment building opened. of a flat fall was plaintiff’s caused found slipping that the platform ice formed on as it building, upon accident, was not at the time constructed so as existed *9 safe tenants of occupying to be as to nature The further would found the building permit. building condition, on was and such not in a day safe reasonably fact was the proximate ques- cause of plaintiff’s injury. tion before the was the defendant land- court of liability lord. It was in behalf that the contended of plaintiff platform could have been extend- rendered safe rоof by constructing court, over it. The not ing the landlord liable holding statute, under the stated : 104) (p.
“It is well known to
one and must have been known
every
to
that there are
in the
legislature
thousands
buildings
state of
Wisconsin
that this
constructed
the manner
just
used,
constructed,
building
bring
so as
occupied
them within the classification of
as defined
public buildings
in the statute. It is difficult
to believe
the legislature
intended to throw
these owners the burden
upon
practi
cally
insuring
thereof
occupants
injury
against possible
them
to cover
of the
so as
compelling
every part
snow, ice,
It is con
protect
same
and rain.
against
safe,
sidered that
is
within the
building
meaning
statute, which is
is
materials and
struc
composed
proper
safe, and that the statute
turally
does not
apply
temрorary
conditions
to the
having
building
no relation
structure of
or materials which it
Juul
Dist.
is
v. School
composed.
168 Wis.
Applying principles foregoing case, instant it is well that there known are thousands of in the state of with buildings Wisconsin constructed doors. A door in itself does not constitute a structural in the defect It when premises. presents danger only left the door in open, opening closing Pulos, this case was within the exclusive control of entirely Pulos, the tenant. The of the door leaving or his open by condition, was a employees, such as the temporary failure Case, to have the turned on in the v. light Kinney Luebkeman and the tenant Pulos alone would liable for Mrs. Wann- macher’s injury, unless there existed some safety order of the industrial commission or ordinance which city required landlord construct a around the trap door.
534 in absence that the any
Plaintiffs’ counsel contend even be would en such order or ordinance the plaintiffs safety the defendant landlord upon titled the recovery against the safe-place the landlord violated finding around the statute by adequate railing failing provide a civil witnesses en door. Plaintiffs called trap expert testified that the premises and two architects who gineer a could been rendered construction of by guardrail have safer around in Bunce v. & Sixth the door. This court Grand trap 100, 238 N. W. held Building, Inc. 206 Wis. (1931), that a as to in a was whether steps jury question presented statute, toilet room were safe within the reasonably safe-place fact that there the that it was conceded wаs notwithstanding the no order of industrial commission city safety ordinance which to the situation there How presented. applicable ever, Mr. Rosenberry, in of Heck the decision Chief Justice 80, 84, el v. Standard Theater 229 Gateway Wis. statute, 281 N. in declared: W. construing safe-place not “The statute does 101.06) require (sec. to do the owner resorted premises public in its or the unreasonable impossible maintaining in a safe condition.” (Emphasis supplied.)
In the Heckel v. Gateway of such Standard holding light Theater, our in Holcomb v. Szymczyk, decision supra, “the to have re- would it be unreasonable’’ supra, requiring in the case to defendant landlord instant have quired a door? In on trap passing constructed around fact that we must take question cognizance trap locations in which doors are used those sufficient widely a floor cannot sacrificed to space provide permanently open a attain access to the basement below. A well for staircase to In the closed entails no loss floor door when space. trap x case, the leased store was 18 only instant for example, was at so premium and floor space feet size an ideal solution of prob- door was installation of how access to without loss lem of the basement provide use the installa- of valuable floor To space. require tion of around door would permanent railing totally its because would render useless as destroy utility floor closed, area when space being very *11 for which it installed in first objective place. Sanders,
In v. Torpey supra, division of appellate York New court declared Div. supreme (248 : App. 305) for “A door is trap temporary designed expeditious use, with as little interference with the use of the floor space which Its construction shows occupies possible. that it to for of not intended be time. The open any kept length is of much free use floor than greater importance space hours. business No stairway could during possible danger in this be feared from the or the door case when trap opening was in door place.” In view of the fact that around a railing permanent trap door would its intended having door destroy utility of floor cannot when closеd serve as useful we resist the space, that conclusion would railing require require “the unreasonable” of the landlord-owner in absence of any We, or safety ordinance order so specifically providing. therefore, are of it does not lie within the opinion that a to find landlord-owner province violated the statute to install such a by failing railing. now come to the consideration We of the contention by counsel that there were orders plaintiffs’ specific safety commission, and the industrial provisions ordinances of Milwaukee, city which required defendant landlord installed a to have around the door. No. 55 of General
Order Orders on Safety issued by commission, the industrial effective March pro- : vides
“Pits, manholes, floors, in and openings platforms, and shall be sidewalks accordance guarded with the require- is used the door and ments of B-l. If Order shall have the floor and the door shall be flush with hinges a surface.” nonslip rough and is an B standards and specifications Order relates to the manner the commission specify on attempt part are to be constructed and devices which various protective B-l, Thus, relating railings their materials. Order toeboards, provides: and toeboards are called for standard railings
“Where orders, to the shall conform following specifica- these they tions attention, or called to our which
There is no order specific find, and toe- able to providing railings have been we In around a con- trap-door opening. are boаrds required definition contained safety, general the orders on struing therein: It is provided A must govern. in Order *12 orders, the term used these ‘guarded,’ When “Guarded. covered, shall mean so provided, otherwise specifically unless a in the course of fenced, person employ- or enclosed in contact with the point to come danger is not liable ment and supplied.) (Emphasis injured.” one enclos- may “guard” opening by It be noted that will it, it. This is the it, covering explanation or fencing ing a of Order relating provision the latter part of a that the use door with a It is recognition door. a the floor and with surface is nonslip with a flush hinges 55, with Order under definitions compliance complete There Orders on was no Safety. in the General contained not were flush with thе hinges that the trap-door showing closed did not have a when nonslip the door floor or made that the accident was is no claim surface, there and or over hinges slipping tripping the plaintiff by caused surface. a slippery upon
TOCO 5410 of the Wisconsin Plaintiffs also rely upon Order code, in- by state which order was promulgated building 29, 1942. Such commission so as to be effective dustrial July reads as follows: order 5410. doors and Trap openings. Every “Order floor roof or used by floor through any through any opening en- a shall be substantial or by guarded
public employees . inches . or rail not less than three feet six high. closure acquired At the time the defendant Baldauf Corporation to the subject tenancy title the leased premises effect, Pulos, and was Order 5410 not in the defendant later. Failure four years not until approximately adopted com- order of the industrial with general safety to comply or build- public mission to places employment, applying statute. constitutes violation ings, enter at common law is under no obligation A landlord alterations, unless such duty make imposed repairs, of the lease. Johnson v. Prange- him by provisions upon Luebkeman, Co., v. supra; Kinney supra; Geussenhainer Tenant, S., Landlord and sec. 366. Does p. 51 C. J. this change statute effect common-law the safe-place a landlord to make duty upon repairs, rule impose alterations, in which were safe at the structurally the landlord has no even under though duty time leasing This to make court repairs? has leasing arrаngement in the In this v. negative. Bewley answered question Kipp 411, 414, court, 233 N. W. Wis. Mr. Chief Rosenberry, stated: through speaking Justice of the common law the lessor was principles “Under *13 unless he assumed such to repair obliga- under no obligation this the lease. statute Concededly the terms of tion by [safe- not, to, intended and does affect the not was place statute] in in tenant this' cases of landlord and respect relative duties tenant of a demised While building. there is a single where conclusive, indication that it is a most significant not this is was not to legislation legislature regulate intending the common-law relation landlord and tenant." modify (Emphasis supplied.)
The in v. is in holding Bewley Kipp, supra, accord with that this court announced in Freimann v. Cum- principle that in ming, supra, order to hold “owner” liable under statute, he must so possess right entry as to be able to do that which is to make the necessary prem- ises safe. reasonably
It is therefore our conclusion that while Order 5410 may Pulos, have been defendant it had applicable no ap- to the defendant landlord because at all plication times since 1942, it in the landlord was out of adopted possession with no to the leased entry right premises.
Plaintiffs’ brief Fond du cites v. Lac Schaefer 810, 74 N. as that an Wis. W. owner holding who in a defective condition and then leases purchases tenant, the tenant the same to a or allows to continue posses- sion under such conditions as to indicate to con- permission defects, be held liable for may injuries tinue to a third from such defects. That case person resulting involved a in track in a defect a street-railway public street which al- existed when the new owner title ready acquired and entered a new with the arrangement into street-railway company continue with an permitting possession option Case is readily purchase. distinguishable from Schaefer the instant case because when the defendant Baldauf title, the door did not Corporation acquired constitute structural defect the leased premises. but the There remains of whether question there was in existence an ordinance of the applicable city Milwaukee the defendant landlord to erect a requiring permanent railing around the door. Ordinance 13-15 comes the (c) closest any states follows: having application,
539 boilers, furnaces, “All new or for pits existing greasing, meters, stairwells and all other new or floor existing pits or where there is a in depressions floor level shall be change sides, at all provided where such except may protection waived or irfodified with inspector buildings, railing as in section. All such required of this paragraph (b) railings shall be floors.” anchored to the securely sup- (Emphasis plied.) 244,
In the case of v. Senders Staples 164 Or. Pac. 101 Pac. a (2d) (2d) plaintiff patron of an and secondhand a tenant of antique shop operated by landlord, the defendant and fell in the through opening floor caused by trap stairway down covering leading into the basement been left A of the having оpen. .section ordinance of Portland building-code city provided follows : 252) (p.
“All over risers in stairways three shall (3) have height a substantial the outside of same if railing along stairs width, are over four feet in or more shall be (4) on both sides. Substantial shall be provided railings pro- for wellholes of stairs and all handrails to be vided the used by shall in be at least inches public thirty (30) height in measured the center of treads or the center vertically landings.” platform court came to the conclusion that the landlord Oregon was not liable and conclusion it was neces- reaching ordinance. The construe sary above-quoted pertinent of the court’s on this is as portion opinion point follows (p. 261): stairs, doors cover a
“Ordinarily buildings flight and about the serve is to form a only purpose they part floor when not and thus the free use permit of that open Sanders, floor v. Torpey See portion space. App. If Div. 289 N. Y. S. 532. must be they surrounded lost, and We are not now doors utility themselves by railings as well be abolished. might questioning council to enact city regulation the power abolishing 539a
them, but attention to the of at- only calling consequences ordinance insisted taching meaning upon by *15 plaintiff. doors,
“The not refer do to but regulations specifically trap to wellholes of stairs. A wellhole is defined as ‘the open floor, in a to accommodate a staircase’ and space (Funk New Standard and in a sense literal Wagnall’s Dictionary), that definition be said to fit the case may when door trap it does not when the door is open, though obviously trap are, therefore, closed. faced with an We ambiguity here, ordinance as it is to be and we think attempted applied more with common accords sense take view that the council had no intention city owners requiring property is, to build handrails around what most the time to all intentions and purposes, part building, floor of and thus that a only utility destroy trap possesses. This also holds true with to a stair respect extended door and above the floor.” through (Emphasis sup- plied.) the Milwaukee
While ordinance uses the term “stair- city wells” and the Portland ordinance “well- employs phrase stairs,” holes the two are and expressions synonymous we that ordinance therefore hold 13-15 of the of Milwau- (c) city as not kee must be construed doors applying covering of stairs. flight It is our conclusion that the defendant landlord Baldauf cannot be held liable Corporation by plaintiffs action on any grounds advanced by counsel plaintiffs’ and considered in this that the opinion, and judgment as to such defendant must be reversed and action dismissed as to it. reversed as to the
By Judgment defendant Court.— and cause Baldauf remanded with Corporation only direc- the action as to said tions to dismiss defendant.
539b 1953, A motion for was on rehearing granted February oral was heard March 1953. argument For the Quarles, there were briefs & appellant Spence by Quarles Kleis, H. and Arthur Wick- Raymond attorneys, Milwaukee, ham counsel, and Richard S. Gibbs of all of Gibbs, Wickham, oral Mr. Kleis. argument Mr. and Mr. by For the there a brief Timmer- respondents was by George man, and Austin Kivett and Kent W. Michael- attorney, W. counsel, Milwaukee, son of all of and oral Mr. argument Timmerman and Mr. Kivett. March following opinion filed 1953: In our rehearing). herein original opinion {on J. CuRRiE,
we stated that it did not lie within the province *16 find that the defendant landlord violated the statute to by failing guard with a trap-door opening of absence ordinance or any order so safety providing. further held that We Order 5410 of the Wisconsin state not code did inasmuch building as when the apply defendant title in landlord 1938 there was acquired no structural defect in the and thereafter it never had premises, any of right entry 5410, or to enable it to with Order possession comply which 29, we stated was so as to be promulgated effective July 1942. for the in their respondent Counsel brief in plaintiff sup- of their motion for for the first port rehearing time called the attention of the court the of provisions Order 5409 9, 1914, became which effective'October as of the state part 29, 1942, code and remained until unchanged building July it was amended and renumbered 5410. when Such original as follows: Order 5409 provided doors and “Trap openings. Every opening through floor aby shall be substantial
any at least three guarded floor enclosure or rail
feet . . .” high. Because Order 5409 before adopted Baldauf George door, install building 1924 to remodeled trao 539c to the defend-
before Baldauf and wife conveyed ant we Baldauf Corporation granted plaintiff’s motion for rehearing. the state code does not refer
Although building specifically orders,’’ there- its the first provisions "safety paragraph of rеads as follows:
“The code has been the industrial building adopted by commission in of its duties under sections 101.01 discharge 101.28, inclusive, of the statutes of It Wisconsin. supple- 101.06, ments the of section to the effect requirement owner of a ‘every every employer place employment or a construct, now or hereafter constructed shall so public building or maintain such
repair, place employment architect shall so building every public for prepare plans the construction place employment public ” as to render the same safe.’ building In v. Hotel Schroeder Co. Wis. Burling 810, this court 291 N. W. referred Order 5116 (2) code, of the state to handrails on building relating stairways, as a order.” We are satisfied that old Order “safety order, did constitute the violаtion 5410) safety (now which would constitute a violation of the safe-place statute. doors,
As such order relates to specifically words floor” thereof any must be “every opening through deemed floor to embrace As so trap-door openings. construed we cannot hold that it is so unreasonable as to be void. Trap doors do hazard‘to The extract safety.' from the present *17 of the court v. Senders Oregon Staples opinion 215, 232, Pac. 101 Or. Pac. (2d) (2d) quoted us in our Wis. states that by original opinion (262 p. 538) the court does not council of question power city and, doors; to enact a Portland regulation abolishing trap council enact such a it seem if a would city might regulation that the industrial commission to do possesses power Therefore, the effect may likewise. while of old Order 5409 door, of a much of we are not destroy utility
539d to hold to be void on the that the com- prepared ground mission it exceeded its adopting powers.
Counsel for the contend defendant landlord that the trap door itself without a constitutes an railing “enclosure” of within of old trap-door Order opening meaning no therefore In order required. pass upon contention, it is to resort to the necessary definitions of the word “enclosure.” New
Webster’s International Dictionary defines (2d ed.), the noun “enclosure” as follows:
“1. Act enclosed, state of enclosing; en- being shut up, cloistered; or compassed, land specif, from separation (cid:127) common or fence barrier. ground by See Inclosure. enclosed, “2. That which is or within placed something: enclosed, A or A (a) space fenced-up. enclosed (b) thing in a as a letter in the with another. package, envelope encloses, “3. as a That which barrier or fence.” definition the noun “enclosure” Funk & Wag- nail’s New Standard Dictionary is English language as follows:
“1. or enclosed; The act the state of enclosing, being land to it from especially, fencing other or separate lands; hence, common the reduction of common to things private appropriation.
“2. An object enclosed or space. A Especially: (1) piece fence, wall, of land surrounded or hedge, the like. letter, enclosed in (2) or Anything envelope, wrapper, encloses, a check That which as or sample. (3) encompasses, wall, in, fence, case, or-shuts as or Petrol. wrapper. (4) Inclusion, inclosure. See Circumference.”
“Syn.: Boundary, S., 42 C. defines “inclosure” or p. “enclosure” J. follows: encloses, “In which shuts encompasses, general, wall,'case, also,
in, fence, as a which en- wrapper; and, closed, within something; specifically applied or placed land, which land inclosed with some visible a term signifies *18 539e ditch, obstruction, fence, the or such as hedge,
and tangible wall, fence, circumstances like; so a or under hedge, other, has been held of one for the a substitution showing sufficient to constitute an enclosure.” it rather than beneath A door covers opening same, find thе word do we “encloses” the and nowhere deem definitions. We “covers” in of the foregoing any “enclosure,” the word there is within the meaning implied order, surround- an or as used said safety encompassing true, if this obviously ing opening, itself is not an “enclosure.” 5409 as having therefore construe old Order required We cut through that the when it was opening, originally trap-door floor in should have been substan- protected barricade at least three feet tial or high surrounding north from which the stairs led side opening, except the basement below. order con- safety down to While tains no with end respect exception opening down, the stairs led such must be im- from which exception be unusable. otherwise the would stairway plied, Seidenschwartz, for Arthur L. The witness plаintiff, expert architect, that a “removable could stated have been guard” “so that at the north end opening provided anybody, basement, to the when wanted would have to they go In that down.” the stairs way, remove would guard go witness, sides. Another be enclosed on all four expert Arthur Dietrich, an testified that he would not recom- C. engineer, mend barricade which would erecting prevent anybody barricade, from but recommended a stairway, using could be moved so as not to destroy which gate, railing, two of these or use of the utility stairway. testimony make it a as to whether witnesses would question expert for the failure a removable or gate provide guard stairway which the north end of the (from trap-door opening constituted a violation оf led to basement) statute.
539f *19 of the all but the requirement order that stair- safety end the be rail or way enclosed with substantial opening barricade at least three feet in a measure high destroys large the of a door makes utility because it unavailable for trap use the floor area within the so that the use trap door would little more than an thereby very advantageous and a ordinary partitioned-off stairway, jury, by finding violation of the statute in not such a safe-place providing removable at the north end of guard gate the opening, would not be “the unreasonable” of the requiring owner who constructs such a stairway trap-door opening. for
Counsel the defendant landlord contend that even this court find does that old Order though 5409 required rail or barricade to be constructed Baldáuf around the door, when he the trap-door opening instálled neverthe- trap less, the Baldauf never Corporation having possessed right possession since re-entry premises acquiring title in so as to enable it to with the comply safety order, cannot be held liable this action for failure to comply However, with such order. when safety the Baldauf Cor- title in poration acquired building structurally unsafe because of the to have failure with complied Safety 5409, and Order its corporation, by act of voluntary title, into the shoes of the acquiring stepped owner previous with to the respect liability by the statute imposed safe-place to future of the frequenters premises reasоn of arising by counsel, defect. The such structural briefs of which are re- case, on the with authorities other plete cite points issue, no authorities in on this point particular and we assume the reason therefor is counsel have been unable in their Neither believe, however, research to find have we. any. We conclusion, owner, that our that the of an grantee who ac- title to a which is quires building structurally unsafe because of failure of owner to prior with comply the require- statute, ments of assumes the liability “own- 539g inis accord
er” to a injured, who frequenter subsequently 101.06, sec. Stats. with the legislative purpose underlying herein, From it is what has been said already apparent a basis existed for the in its verdict finding by special landlord, that the failed building, defendant as owner of “in have vicinity safe as the nature reasonably would building permit ... around said respect providing adequate railing herein, door.” As out in the pointed original opinion defendant landlord cannot be held liable in respect *20 for to it title and enter the after failing premises acquired such in because was provide railing, exclusively possession ,the tenant with no in the landlord. right re-entry basis of the the of a liability of landlord the result present condition in law under the statute the implied by it of the conveyance to leased the former owner premises by a because of then structural defect which would have existing rendered the former owner liable under such statute to future if he had continued as owner. frequenters This now us tо consideration of the contention brings made counsel for the defendant by landlord that error prejudicial was committed the trial court in by instructing jury when, counsel, awas as plaintiff frequenter, contended by a she was Because of trespasser. the ground which we upon based the result reached in our we found it original opinion to unnecessary pass upon last-mentioned issue. It is claimed that all of the trap-door opening except north inches thereof was so eight off a partitioned counter by and from wall partition remaining part used of Pulos’ patrons and cleaning shoeshine establish- as ment indicate clearly that it was reserved for the private use of the and his proprietor employees which patrons tо have no admittance. Furthermore, were there was testi- that Pulos’ son mony warned the plaintiff, before she stepped back into vicinity not to trap-door opening, go
539h behind the counter that he her attention to the and called in but that danger trap-door of such opening, spite she did back of the counter and as a result warning thereof go However, fell into the in the trial court his opening. instruc- tions to the stated:
“The in this case was a plaintiff frequenter portion in Mr. building question Pulos as his occupied by business that term has been place defined is used in the statute.”
In Newell v. Schultz Brothers Co. 239 Wis. 1 N. W. a (2d) customer the defend- plaintiff, store, ant’s walked a through into doorway areaway fell down of stairs. There was fastened on the flight side of the door thе store facing white cardboard proper large with sign large lettering reading, Only,” “Employees was for necessary plaintiff pass through doorway stairs, to reach the no but there is direct evidence whether shut at the time. This court held that open sign in itself conspicuous question constituted due no- tice and that no invitation warning customer enter store to could be areaway be deemed to implied, existed, have and therefore was a plaintiff and not trespasser *21 a As a the frequenter. trespasser defendant store owner owed no to the under the duty plaintiff statute. safe-place cases,
Other that if there is notice a holding adequate that he not a frequenter should into of a go build- part public and, in ing such notice he spite the same disregards area, enters into the forbidden he becomes a "trespasser so as be not to entitled to claim under the damages statute, are: Harder v. Maloney (1947), Wis. 830;
26 N. W. v. O’Hara (2d) Ryan (1942), Wis. 209; 6 N. and Grossenbach (2d)W. v. Devonshire Realty Co. 218 Wis. N. 261 W. 742.
On the basis authorities foregoing there was suffi- casg cient evidence in the instant to raise the issue of plaintiff 539i if fell into the a of a instead she
being trespasser frequenter, counter, rather from the side back of trap-door opening it than the north inches of such and there- into eight opening, fore was error for the learned trial court instruct jury she a for as a matter of law that was Counsel frequenter. that inasmuch found that jury plain- urge, plaintiff behind the counter in the tiff was not negligent going door, her this in itself from absolved vicinity However, a in so may have being jury finding trespasser. she instruction that was been influenced the erroneous had, a new Inasmuch as trial must be separate frequenter. be inserted should verdict special requiring question on the issue whether was tres- finding plaintiff specific the time and of the accident. respect at With passer place if on issue the evidence is such question, substantially trial, an the same at the new instruction should given if will inform concludes clearly jury, plain- which tiff fell into the north inches of eight opening (which was located within the limits of portion then the should answer such so public aisle), question she not a as to find that trespasser. mandate of the is
By previous opinion Court.—The as to as to provide modified so reversed judgment defendant Baldauf cause remanded for Corporation only, a new trial consistent with opinion.