Woodruff v. Ellenbecker, 194 Wis. 167

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194 Wis. 167 | Wis. | 1927

Lead Opinion

Crownhart, J.

The circuit court dismissed the complaint on the ground, as stated by him, that it was—

“Just a simple proposition — there is a contrivance there that is just as simple as any contrivance can be made. It is perfectly obvious if you lift up that cover, unless you hold it, or prop it, it is going to fall down. . . . There is no negligent construction about it. It is bare — -it is just as simple a thing as can be made. One is never obliged to give warning of what is perfectly-obvious. Now, it is obvious that is going to fall down unless it is held up, or fastened up. A man, in putting the hinges on again, is not bound to warn people that it will fall down; and there is the basis of your liability.. One is bound to see and perceive what is entirely manifest on observation. The point is, I can't see any possible negligence on the part of the defendant here. He made something that is absolutely simple — he repairs a cover there — fixed those hinges; and he is not bound to assume that anybody is not going to look what they are doing, and things of that kind.”

The court obviously overlooked the fact that while this was a very simple contrivance, by reason of the manner in which it was first made and used by the plaintiff over a long period of time the cover would stay up when raised, and that after the repairs were made the cover was so changed that it would fall down unless held up. The plaintiff had received no warning of the change, and we do not' think it was readily obvious to the plaintiff that the change had been made. It was quite natural for her to assume that *170the cover would stay up as it had in years gone by, and from force of habit to again use it as she had for many years. The most simple contrivance may constitute a dangerous trap or snare to a person using it. A loose board in the sidewalk is a very simple matter, but such a contrivance has been held a dangerous trap or snare to the pedestrian, — not because of its simplicity, but because of hidden danger lurking therein. Raether v. Mentor, 142 Wis. 238, 125 N. W. 468.

The owner may not make a trap or snare on his premises and so induce his tenant to use it as to cause him injury. Even as to licensees, the owner may be held liable under such circumstances. Brinilson v. C. & N. W. R. Co. 144 Wis. 614, 129 N. W. 664; Zetley v. Jame Realty Co. 185 Wis. 205, 201 N. W. 252. An invitee on the premises of the owner is entitled to protection against an ordinary simple contrivance if, by reason of its construction and location, it conceals a defect or danger. Lehman v. Amsterdam C. Co. 146 Wis. 213, 131 N. W. 362. It has been held that where a flagman has usually been maintained at a crossing, his withdrawal without notice to the public, which has alright to rely upon his presence, may in and of itself constitute a want of ordinary care, because “the traveler might in this way be lured into danger, when, if no flagman had ever béeii kept there, he would not have looked for such a signal, but would have looked and listened for other signs of an approaching train.” Burns v. North Chicago R. M. Co. 65 Wis. 312; 315, 27 N. W. 43; also Gundlach v. C. & N. W. R. Co. 172 Wis. 438, 179 N. W. 577, 985.

The principle is'applicable to this case. The plaintiff had been using this box for a long period of time when it was so constructed that the cover would stay up without being fastened, and then the' landlord, without her knowledge and without any warning to her, changed the condition of the cóver'so thát it would not stay rup. The - plaintiff had been lured into a danger that was not necessarily obvious to her.

*171The respondent relies upon Holt v. C., M. & St. P. R. Co. 94 Wis. 596, 69 N. W. 352, known as the “Pinch-bar case,” and Borden v. Daisy R. M. Co. 98 Wis. 407, 74 N. W. 91, known as the “Step-ladder case.” In neither of these cases was the plaintiff lured into the use of a dangerous contrivance, and in both such cases the plaintiffs were using the instrumentalities for the first time, and the court held that they should have' made a simple inspection that would have disclosed the defect. Other cases are cited by respondent to the same effect.

We are of the opinion that the facts in this case presented a jury question as to negligence and contributory negligence.

This disposition of the matter makes unnecessary a consideration of the safety statutes, ch. 101.

By the Court. — The judgment of the circuit court is reversed, and the cause is remanded for a new trial.

Dissenting Opinion

Eschweilee, J.

(dissenting). Because I can see in this record no showing of any duty imposed by law upon defendant for alleged breach of which he can be held liable in tort, I must dissent.

There is no showing that defendant knew that plaintiff relied upon the prior situation of this cover as to remaining open. The cover was out of repair, with the hinges broken, for some time, and had been used by plaintiff while in such imperfect condition. The repairs, ordered by defendant upon notice from the city, consisted in replacing with new and heavier boards, a new adjustment of the hinges, and a painting of the cover..

I can see no ground for holding that under these facts and circumstances there was duty resting upon defendant to notify all the tenants and the members of their families who might go to this refuse box that such repaired cover, when lifted up, would fall, unless in some manner supported. It would seem that plaintiff was bound to know, without specific instructions, that the law of gravity was ever present, *172invariable, and instantaneous, and that unless such a cover was in some manner supported when open it would immediately fall. I can see no element of a trap or hidden danger in such situation aiid no law imposed duty to warn.