Dowling v. Nuebling

Cassoday, C. J. It appears from the record that the defendant, being the owner of the dwelling house, two stories high, with a basement, on the premises described, rented the-upper portiou of the house to the plaintiff October 4, 1895, together with a portion of the basement which could only be entered by her by means of a stairway from the outside of the house; that the plaintiff took possession of the rooms and the key to the basement, and continued to occupy such rooms and basement as such tenant until after January 21, 1896; that on the day last named, the plaintiff and her sister went from her residence, in the upper story of the house, to the ground, and down into the basement, by means of the stairway, and, upon her return from the basement, attempted to pass up the stairway, and while in the act of doing so, and being upon the upper step, the same did break and give way, by reason of its alleged defective condition, whereby she fell and was injured; and she brings this action to recover damages therefor. The defendant, by way of answer, admits [351] the renting and the tenancy, but otherwise denies the allegations of the complaint, and alleges, in effect, that, if the plaintiff was injured as alleged, it was by reason of her own carelessness. At the close of the testimony on the part of the plaintiff, the court granted a nonsuit, and from the judgment entered thereon the plaintiff brings this appeal. It is settled in this state that, “in the absence of any secret defect, deceit, warranty, or agreement on the part of the landlord to repair, he cannot be held liable to the tenant or any one rightfully occupying under him for an injury caused by the leased premises getting out of repair during the term,' unless it be by reason of his own wrongful act, or failure to perform a known duty. And this is so although the premises are let to several tenants, and the injury is caused by want of repair in a passageway used by them in common.” Cole v. McKey, 66 Wis. 500. So, it has been held by this court that “ the lessor of an hotel is not liable-for an injury to a guest caused by the fall of an awning known to be unsafe, unless he was bound by the lease to-keep the awning in repair.” Fellows v. Gilhuber, 82 Wis. 639. There is no allegation in the complaint, nor proof, of any agreement on the part of the defendant to repair or warrant against defects in the stairway in the contract of leasing. The most that is alleged is to the effect that the stairs were defective and out of repair at the time of leasing; that the defendant’s attention was afterwards called to the fact; and that he promised to repair them. And there is testimony to the effect that, on Sunday after the plaintiff had taken possession, the defendant informed the plaintiff that he had' some doors and the basement stairs and the water-closet to-fix; that about two weeks before Christmas, after the renting, the defendant told the plaintiff’s brother that he was going to fix up everything; that he never did fix the stairs;, that, from the time the plaintiff took possession down to the352 time she was injured, the stairs kept getting worse. The evidence on the trial, as well as the allegations of the complaint, are insufficient to establish liability on the part of the ■defendant. By the Cowrt.— The judgment of the superior court of Milwaukee county is affirmed.