180 Wis. 537 | Wis. | 1923
The issue between the Trapp Brothers Dairy Company and the Reisinger Company on the cross-complaint involved purely questions of fact. The following portion of the opinion of the trial court very well states the nature of the issue between these parties' and the conclusion reached:
“The findings of the jury, including the finding that Reisinger & Company had constructed and maintained a substantial railing at the top of the elevator shaft until it had completed its original contract, appear to the court to be fairly sustained by the evidence. Therefore no change in anj'- of the answers of the jury to the questions in the special verdict should be made.
“Upon these findings I think that the responsibilities of Reisinger •& Company to guard the top of the elevator shaft had ended before plaintiff’s injury. The further work done by Reisinger <& Company upon the lower floors in order to get the proper grade of slope was arranged for under a new oral agreement and cannot be considered as a continuation of the written contract. There appears to have been a considerable interim after the completion of the work under the original contract and before the discovery that the floors needed reshaping. It cannot be justly contended that during that period the responsibility of Reis-inger <& Company to maintain in a safe condition the structures that were erected, continued beyond the completion of such structures, merely because later the owner of the building desired some further work done not covered by the original contract. For this reason the court is of opinion that Reisinger & Company are not under liability either to plaintiff or to the defendant Trapp Brothers Dairy Company.”
There was considerable testimony relating to the time of completion of the work by the Reisinger Company and much of it was conflicting. There was sufficient credible evidence
The plaintiff bases his claim against the Trapp Brothers Dairy Company on several statutes. Sec. 2394 — 48 requires every employer and every owner of a place of employment or a public building to SO' construct, repair, or maintain such place of employment or public building as to render the same safe, and every architect -is required to so prepare the plans for the construction of such buildings as to render them safe.
Sub. (1) and (13), sec. 2394 — 41, Stats., are as follows:
“(1) The phrase 'place of employment’ shall mean and include 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.”
“(13) The term ‘owner’ shall mean and include every person, firm, corporation, state, county, town, city, village, manager, representative, officer, or other person having ownership, control or custody of any place of employment or public building or- of the construction, repair or maintenance of any place of employment or public building, or who prepares plans for the construction of any place of employment or public building. Said sections 2394 — 41 to 2394 — 71, inclusive, shall apply, so far as consistent, to all architects and builders.”
Counsel for Trapp Brothers Dairy Company argue that it was not an employer within the meaning of the statute and therefore not required to furnish a safe place to the contractors, their employees, or other frequenters. It is contended that the statute does not apply to the owner until the place becomes a place of employment except as to the duty to
It is clear from the evidence and the findings of the jury that at the time of the accident there was no railing and that for that reason the interior of the penthouse was not as free from danger to the safety of workmen and frequenters as the conditions would reasonably permit. As between the several contractors it was undoubtedly the duty of each to so c'onduct the work under its control as to furnish safe places of employment and to adopt methods reasonably adequate to render the employment and places of employment safe not only for his employees but also for frequenters. This duty, however, does not necessarily relieve the owner of a building under process of construction from liability under the statutes.
The claim of defendant’s counsel that under all circumstances an owner of a building of this character owes no duty to so maintain it as to render it safe until he occupies it for his own business purposes seems too narrow a construction of sec. 2394 — 41. By this statute there is imposed a duty not only on the employer but also on the owner.
The last few lines of this section make an exception relating to private domestic service and agricultural pursuits. The rest of the section is framed in very broad language.
It would be difficult to use broader language describing what is meant by the phrase “place of employment.” We are forced to .hold that the building was a place of employment; that the language includes the building operations which were being carried on when the plaintiff was injured, although the process of building was temporary and although the defendant had not commenced to occupy the building for its permanent business.
It is contended for the Dairy Company that it was not the legislative intent to make naked ownership a test of liability for injuries to employees or frequenters during the process of erection of buildings, and the hardship and injustice which might arise from such a construction of the statute is vigorously argued. It is also contended that a statute requiring the owner to be held for a failure of the contractor to keep his place safe for his workmen or other workmen would be unconstitutional as depriving the owner of his property without due process of law. The facts in this case are such that it becomes unnecessary to decide the question thus raised by defendant’s counsel. The plaintiff does not base his claim on the naked ownership of the property.
The work of construction was let piecemeal to various contractors, none of whom had the complete control and custody of the building. The defendant Dairy Company and its architect were the only ones having such custody and control. On this state of facts we think that the statutes referred to apply and that the judgment against Trapp Brothers Dairy Company should be sustained.
We now come to the question whether the judgment should be affirmed as to the other defendant, the Consolidated Sheet Metal Works. -The jury found-that the handle of the door had been improperly affixed when the door was installed. There were two handles, each fastened to a long spindle which went through the door. One was fastened by a rivet and the other by a set-screw. The testimony was such that the jury could properly find that the handle fas
It is argued by counsel for defendant that the door handle had been used for some time and that there was no evidence of negligence except it be the inference from the fact that the handle came off. It is claimed by plaintiff that if the handle had been properly affixed the accident would not have 'happened; that the short part of the handle fastened to the spindle by a screw should have been on the outside and not on the inside, where there was evidently a chance of serious danger if the screw became loose. It is argued that if the handle had been thus adjusted the long spindle would have given some resistance, thus probably preventing the accident. All the evidence as to the manner in which the handles were affixed to the door; their usé; and the way in which the accident happened, was before the jury and they had the right to draw from it all proper inferences.
It will be seen that the case of plaintiff does not, as claimed by defendant’s counsel, rest alone on the doctrine of res ipsa loquitur. It is by no means clear, however, that under the circumstances negligence might not have been inferred from the mere fact that the handle became loose. The door was new, and the handle had only recently been adjusted to it. The defendant offered no rebuttal or explanation. The doctrine res ipsa loquitur was thus stated by an English judge:
"But where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course" of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.” Scott v. London & St. K. D. Co. 3 H. & C. 596, 601.
This rule has often been declared by this court. Klitzke v. Webb, 120 Wis. 254, 97 N. W. 901; Mulcairns v. Janes-
We cannot say that the finding of the jury on this question, approved by the trial court, should be set aside.
By the Court. — Judgment affiryned.