Opinion
March 2, 1964 —
March 31, 1964.
APPEAL from two judgments of the circuit court for Ozaukee county: MILTON L. MEISTER, Circuit Judge. firmed.
For the appellant there was a brief by Phillips, Hoffman Phillips of Milwaukee, and oral argument by N. Paley Phillips.
For the respondent Zeitz there was a brief by George D. Young, attorney, and Theodore L. Priebe of counsel, both of Milwaukee, and oral argument by Mr. Priebe.
For the respondent Riemer there was a brief by Gerold Huiras of Port Washington, and Kluwin, Dunphy, Hankin Hayes of Milwaukee, and oral argument by Bernard J. Hankin and Ralph Huiras.
Action by August Sposito against Bruno Zeitz and Erwin Riemer for personal injuries.
Defendant Riemer owned the premises on which the injury occurred and on which a building was being constructed. Riemer had made a contract with an architect to prepare plans, to assist the owner in drafting forms of proposals and contracts, and to give general supervision of the work.
Riemer made contracts with several firms and individuals selected by the architect for the performance of specified parts of the work. Defendant Zeitz agreed to do the masonry work, among other things. Milwaukee Bridge Company, Sposito's employer, agreed to do structural and other steel work. Riemer's place of business adjoined the construction site, and he could see construction progressing. He very seldom went on the site. The architect called in the contractors and did the supervision.
On February 24, 1959, employees of the Bridge Company were putting up steel joists. Zeitz's masons were laying cement blocks on a wall. The latter were working from a scaffold they had erected. They had a wooden ladder which they used to mount the scaffold, and there was testimony that this ladder had been used by the masons for as much as ten days.
At the time of Sposito's injury, one of his coemployees was working a number of feet above the ground on a steel column, and it was Sposito's duty to take some welding rods up to him. Sposito asked one of the masons for permission to use the ladder, and then moved it about 15 feet to the steel column. As he was mounting it, a rung broke, and he fell.
There was no positive evidence as to who owned the ladder or who brought it on the premises. Nelson, a subcontractor under Zeitz, had been first on the job and he had no ladder. The only others on the job before the accident were Zeitz and the Bridge Company. Zeitz had originally had two ladders on the job, but they had been removed. Zeitz knew the offending 12-foot ladder was present, but did not know where it came from. Bridge Company employees had used the ladder before Sposito's injury, and Zeitz testified he first saw the ladder after the steel men had been on the site the first time. This ladder remained at the site after the accident and one of Zeitz's men nailed a board across where the rung had broken out. It was later used on a construction site next door where both Zeitz and the Bridge Company worked. Riemer had no interest in that job. Sposito testified that the masons needed a ladder, but that the steel men did not need one and did not bring one.
At the conclusion of the evidence, the court directed a verdict in favor of Riemer. Judgment in his favor was entered May 1, 1963.
The jury found that Zeitz was not negligent with respect to maintaining the ladder as safe as the nature of the place reasonably permitted, and that Sposito was not negligent as to his own safety. Judgment in favor of Zeitz was entered June 7, 1963.
Plaintiff appealed from both judgments.
Additional facts will be referred to in the opinion.
Plaintiff Sposito founds his case entirely on alleged violation of the safe-place statute by Riemer or Zeitz or both. His theory is that the ladder was an unsafe part of a place of employment as to which Riemer had a statutory obligation as owner and Zeitz had a statutory obligation as an employer. As to both, Sposito was a frequenter under the statute.
Sec. 101.06, Stats.
There is no question as to the legal obligation of Sposito's employer, the Bridge Company, to furnish him with safe employment. Sec. 101.06, Stats., requires an employer, in addition to furnishing a safe place of employment, to "furnish employment which shall be safe for the employes therein . . ." The industrial commission has promulgated rules for safety in construction requiring provision of ladders "for safe and easy access to elevated working levels" and imposing the responsibility for provision and maintenance of the protection required by the code upon the immediate employer unless definitely assigned to another by contract, and properly executed by the assignee. The present action does not, however, concern any obligation Bridge Company might have, by reason of any violation of its duty, under the Workmen's Compensation Act.
3 Wis. Adm. Code, sec. Ind 35.25.
3 Wis. Adm. Code, sec. Ind 35.01.
1. The case against Riemer. Defendant Riemer asserts that he turned the premises over in safe condition to an independent contractor, and therefore is not liable under the safe-place statute for damages produced by changes in the premises thereafter made by the contractor. We are not, however, prepared to say that under the circumstances here present, where the owner did not turn over the premises to the exclusive control of one contractor, but let parts of the work to a number of different contractors, to be performed under the general supervision of an architect, the owner was relieved of all responsibility for dangers which arose after the contractors began to work. Where such dangers arose, however, out of acts of the contractors or resulted from their failure properly to maintain equipment, we think the owner has not violated the safe-place statute until he has had actual or constructive notice of the defect. This is the rule which applies where the danger arises from a failure to maintain or repair or where the hazard was created by someone other than the owner or his agent.
Weber v. Hurley (1961), 13 Wis.2d 560, 569, 109 N.W. (2a) 65.
Boutin v. Cardinal Theatre Co. (1954), 267 Wis. 199, 204, 64 N.W.2d 848; Krause v. Veterans of Foreign Wars Post No. 6498 (1960), 9 Wis.2d 547, 552, 101 N.W. (2a) 645.
Kosnar v. J. C. Penney Co. (1959), 6 Wis.2d 238, 242, 94 N.W.2d 642.
There is no evidence tending to show that Riemer owned or had control of the ladder. He apparently was not aware of its presence, but in any event was not chargeable with knowledge of any defect. The judgment in his favor must be affirmed.
2. The case against Zeitz. The jury was asked: "At the time and place in question was the defendant, Bruno Zeitz, negligent with respect to maintaining the ladder as safe as the nature of the place reasonably permitted?" The jury answered "No."
The court had instructed the jury that Zeitz was required to maintain the ladder as safe as the nature of the place would reasonably permit; that in order to find him negligent in that respect, the jury must find he had actual or constructive notice of the alleged defect; that if he did not so maintain the ladder, then the jury must answer that he was negligent; that a safety rule requires inspections of equipment.
Williams v. International Oil Co. (1954), 267 Wis. 227, 230, 64 N.W.2d 817.
Thus the matter was submitted to the jury upon the theory that Zeitz was responsible for the safety of the ladder as part of the place of employment.
The only reference to a question of responsibility for the ladder was as follows:
"There has been considerable testimony in this case concerning one certain ladder that was on the premises in question. The Court will not attempt to comment in any way upon the evidence that has been received. You will notice that there is no specific question in the special verdict inquiring into the ownership of said ladder, and this was done be cause there was no evidence presented as to such ownership. You will, however consider the use and control of said ladder by the employees of both the defendant, Zeitz, and by the plaintiff, and the employees of the Milwaukee Bridge Company, and in so doing you will rely upon your recollection as to what the testimony was in this regard."
The jury was not told to answer the question as to Zeitz's negligence "No" if the Bridge Company had the ladder under its control with the Zeitz employees merely borrowing it upon occasion, and we do not so construe the answer. Upon the basis of the evidence of use and control previously referred to, it seems improbable that the jury would have drawn the inference that the Bridge Company rather than Zeitz was responsible for the ladder.
We conclude that the jury found that the defect in the ladder was a matter of maintenance which inspection would not have revealed.
The testimony was that one end of the rung sheared off and then the other end broke and that the ladder appeared weather-beaten. It had been used without accident for ten days, and the defect was not obvious. Although Zeitz's men admitted the ladder had not been inspected, there was no testimony what a reasonable inspection would probably have revealed, and the jury was left to common knowledge and experience in that regard. The ladder was used for a substantial period after the accident with apparently no repair but the makeshift replacement of the broken rung.
On this state of the evidence we cannot find as matter of law that Zeitz, in the exercise of reasonable diligence, should have discovered the defect in time to remedy it.
It follows that the verdict adequately disposed of the issue, and judgment thereon should be affirmed.
By the Court. — Both judgments affirmed.