Kelenic v. Berndt

Rosenberry, J. It appears without dispute that under the rules of the industrial commission a building that accommodates more than four families must be illuminated from one hour after sunset to one hour before sunrise, in the public passageways and stairways, and that there shall be a light at the head and foot of every stairway. The trial court correctly held that the duty thus imposed upon 242 the defendant landlord was a statutory one, to which assumption of risk was not a defense, and that under the doctrine of Beck v. Siemers, 174 Wis. 437, 183 N. W. 157, the use by the deceased of the unlighted stairway was assumption of risk as distinguished from contributory negligence.' The deceased was not required to make good the landlord’s failure to perform his duty and his failure to do so was not contributory negligence. It is no indication of- recklessness to use an unlighted stairway. Besnys v. Herman Zohrlaut L. Co. 157 Wis. 203, 147 N. W. 37; Kielar v. Fred Miller B. Co. 165 Wis. 237, 161 N. W. 739. See, also, discussion in Fandek v. Barnett & Record Co. 161 Wis. 55, 150 N. W. 537, where the authorities are collected. There is some dispute as to whether or not the building was occupied by more than four, families at the time of the occurrence of the accident. The defendant himself testified that the building accommodated five families and one apartment was vacant. It also appears that there were four families and in addition to that some single men actually occupying the building at the time of the accident. If a building is intended to accommodate more than four families, the mere fact that one part of it may be temporarily vacant does not malee the rule of the industrial commission inapplicable. By the Court. — Judgment affirmed.