185 Wis. 205 | Wis. | 1924
The claim of the plaintiff was that she fell from the street into an excavation on the defendant’s land through the negligence of the defendant in placing an insufficient barrier in front of said excavation.
Sixth street runs north and south and Cherry street runs east and west at right angles crossing Sixth street. The defendant owned the premises at the southwest corner of said streets, consisting of a vacant lot on the corner and the adjoining lot, upon which was situated a two-story frame building fronting on Cherry street. The plaintiff with her husband-were tenants of the defendant, occupying the lower floor of said building. At the time of the accident they were conducting a second-hand store in the front of the building, and the rear was occupied as living quarters. The defendant acquired this property in 1914, at which time there was a building on the now vacant lot immediately east of the building occupied by the plaintiff. The building on the now vacant lot was, shortly after the purchase by the defendant, removed, leaving- a basement hole or excavation
'On the day of the accident the plaintiff was in the store trying to sell a pair of shoes to a colored man. He left without making a purchase, and went east on Cherry street and turned south on Sixth street. The plaintiff sought to recall the colored man, and passed out of the door along the cement walk and turned to the wooden barrier and called across from that point to where the colored man was on Sixth street. As she did so she placed her two hands upon the board barrier, when it gave way and plaintiff lost her balance, fell into the excavation upon the rocks, and re
The appellant relies on the following assignments of error: overruling defendant’s motion for a nonsuit; overruling the defendant’s motion for a directed verdict; refusal to change the answers in the special verdict; denying motion for a new trial; and in ordering judgment for the plaintiff. These errors are all discussed under the two heads, to wit: that under all the facts the defendant did not owe any duty to the plaintiff to erect or maintain a barrier at the point in question; and second, the plaintiff was guilty of contributory negligence. The amount of the damages is not in dispute.
We think the insufficiency of the barrier was clearly proven. It appeared that the plaintiff merely rested her hands upon it lightly, when it gave way. An examination of the fastening to the corner of the house after the accident would indicate that it was nailed thereto by one small nail, which had become badly rusted, and that the board evidently was rotted around the nail so that it slipped over the nail and dropped down. The board disappeared after the accident and was not in evidence. It had been put up in 1914 and had been there ever since. The fact that it gave way under the circumstances was sufficient to show that the barrier was unsafe.
The president of the defendant corporation testified that he visited the place five or six times a month ever since its purchase in 1914; that he had caused the barrier to be placed there, and knew it was there, but that he had not observed its fastening or its dangerous condition. Assuming that the appellant owed the plaintiff the duty of maintaining a barrier, it was plainly evident that it was guilty of negligence in not maintaining the barrier in question in a safe condition.
The principles of law applicable to invitees, licensees, and trespassers are discussed in Gorr v. Mittlestaedt, 96 Wis. 296, 71 N. W. 656. We will not review the authorities there cited. The principle here applicable may be stated in this way: Where premises adjoining a public way are so connected with the public way as to indicate a public use, an invitation to so use is implied. In such case the' owner is bound to use ordinary care to protect users of such way from personal injury by reason of such use.
The defendant had fenced in all his lands fronting on Cherry street, and had fenced around the open areas in front of his building. The building was-a public building. Its front windows contained a sign “New and Old Shoes Sold Cheap.” It was rented and used as a store into which the
By the Court. — The judgment of the circuit court is affirmed.