
    Wilber, Respondent, vs. Follansbee, Appellant.
    
      October 2
    
    December 10, 1897.
    
    
      Landlord’s liability for defects in premises: Repairs by independent contractor: Evidence: Instructions: Special verdict.
    
    1. A landlord, in making repairs and improvements, even voluntarily, to the demised premises, owes a duty of reasonable care to the occupying tenants not to make the same' inconvenient or dangerous, and he cannot escape that duty by placing the work with an independent contractor.
    2. A landlord who fails to perform his duty in that respect is liable to a tenant who suffers injury through a defect occurring in the progress of such repairs, though he had no actual knowledge thereof.
    
      8. In an action for an injury caused by such a defect, evidence is admissible to show that the plaintiff had good health previous to the accident, and that impah-ed health followed it, as tending to show that the accident was the cause of such impaired health.
    4 The test, in such an action, as to whether the defect alleged was the proximate cause of the injury was whether it was such that a person of ordinary intelligence and prudence should have foreseen that an accident was liable to be produced by that cause, and an instruction which gives that as one definition of proximate cause, and also defines it as the “immediate cause,” though not very clear, is not error, in the absence of a request for more-direct instructions.
    5. Where the injury sued for was caused by the tenant’s stumbling over rubbish left in a hallway'in making repairs to the premises, and the question whether the condition of such hallway and the failure of the landlord in the care thereof were the proximate cause of the accident, has been submitted to the jury for a special verdict, it is not error to refuse to submit the question whether the presence of such rubbish was the proximate cause thereof, because the ground is covered by the former question.
    Appeal from a judgment of the circuit court for Milwaukee county: D. H. JoimsoN, Circuit Judge.
    
      Affirmed.
    
    The defendant is the owner of a block of tenements in the city of Milwaukee. It was occupied by a considerable number of tenants. The plaintiff bad rented and occupied a flat on the second floor, which she used both for a residence and a place of business. A stairway which opened from the-street extended úp through the building to the third and fourth floors. This was used in common by all the tenants of the building, as occasion required. There was also a “ back stairs ” opening upon an alley, which the plaintiff could use. There was a landing at the top of the stairs, which communicated with the plaintiff’s apartments through a short hall. The defendant, without consulting her tenants,, was engaged in making quite extensive improvements, remodeling, and repairs of the building, for her own purposes-A story was added to the height of the building, and changes,, remodeling, and repairs of the halls and stairways were-made. The stairs and hallways became littered and obstructed by rubbish and debris, from the work which was going on in making the repairs, to such, a degree that they became unsafe and dangerous to persons using them. The plaintiff, in attempting to pass from her apartments to the street, slipped or stumbled upon some rubbish in the hallway, fell down the stairway, and was injured.
    There was a special verdict, as follows: “(1) Was the plaintiff the tenant of th'e defendant at the time in that behalf alleged in the complaint, and in the building described in the complaint, at the time of her injury? Answer: Yes. (2) Was the place where the plaintiff claims to have been injured commonly and necessarily used by the plaintiff and the other tenants of the defendant in the same building, for the purpose of entering and leaving the said building? Answer: Yes. (3) Was such place in a reasonably safe condition for passage and repassage at the time of the plaintiff’s alleged injury? Answer: No. (4) If,in answer to the last interrogatory, you say that such place was not in a reasonably safe condition for passage and repassage, was such condition the result of the want of ordinary care on the part of the defendant in the matter of providing safe means of entrance and exit for her tenants in said building? Answer: Yes. (5) If you say that said place was not in a safe condition, and that its condition was the result of a want of ordinary care on the part of the defendant, were the condition of said place and the failure of the defendant in the matter of the care thereof the proximate causes of the plaintiff’s injury? Answer: Yes. (6) If you say that the place where the plaintiff fell was not in a reasonably safe condition for passage and repassage, was such condition known to the defendant, or could she, in the exercise of reasonable care, have known the same at the time of the plaintiff’s injury? Answer: Yes. (7) Was the plaintiff guilty of any want of ordinary care on her part, which proximately caused or contributed to the injury of which she complains ? Answer: No. (8) If the court should be of the opinion, that the plaintiff should recover, in what sum do you assess her damages? Answer: $1,450. (9) Was there, at the time of the plaintiff’s injury, a safe and reasonably convenient means of exit from the rooms of the plaintiff to the street, other than by way of the stairway down which the plaintiff fell? Answer: No.”
    The plaintiff had judgment on the verdict, from which the defendant appeals.
    For the appellant there was a brief by "Winkler, Flanders, Smith, Bottom <& Vilas, and oral argument by J. Q. Flanders.
    
    They argued, inter alia, that if the accident was due solely to the negligence of an independent contractor the landlord was not liable, and the court erred in excluding evidence that the work was under the control of such a contractor. Smith v. Milwaukee Builders’ <& Traders Exchange, .91 Wis. 860; HacJtett v. W. U. Tel. Go. 80 id. 187; Carlson v. Stocking, 91 id. 432; Odie v. McKey, 66 id. 500. He could not be held to have authorized any incidents of the work resulting purely from such contractor’s negligence. Scammon v. Chicago, 25 Ill. 424; Wertheimer v. Saunders, 95 Wis. 573. To make the landlord liable he must have had notice of the defect a sufficient time before the accident to enable him to remove it. Deisenrieter v. Kráus-Merkel M. Go. 92 Wis. 169. The charge of the court upon the subject of proximate cause was misleading. The admission of testimony as to plaintiff’s health before and after the accident, without showing a causal relation between those conditions and the accident, was error.
    For the respondent there was a brief by Quarles, Spence <& Quarries, and oral argument by W. O. Quarles. ■
    
   The following opinion was filed October 22, 1897:

Newman, J.

The appellant assigns errors as follows: (1) .The rejection of her offer to prove that the work of improvement and repairs was being done by an independent contractor. (2) The refusing to admit in evidence the contract under which the work was being done. (3) The admission of testimony to show the condition of plaintiff's health before and after the accident, without showing any causal relation between the accident and her alleged altered condition of health. (4) The giving of several instructions excepted to. (5) [Refusing to submit for special verdict questions requested by the appellant. (6) The verdict is not sufficient to support the judgment. (7) The refusal to set aside the verdict and grant a new trial.

1. On this point the case is ruled by the recent case of Wertheimer v. Saunders, 95 Wis. 573. In that case it was held, on full consideration, that the landlord, in making repairs and improvements to the demised premises, owes a duty of reasonable care to the occupying tenants, which he cannot escape by placing the work with an independent contractor ; especially if the work to be done is attended with danger to the tenants. Evidently, the accomplishment of the improvements and repairs contemplated would render some degree of danger imminent to such as should use the stairways and halls during its progress. So, the fact that the work was being done by an independent contractor was entirely irrelevant to the question of the defendant’s liability. This is entirely aside froin the question of the defendant’s liability to her tenant to make repairs. She made them voluntarily, and for the advancement of her own purposes. It is immaterial whether the hall and stairway were a part of the premises demised to the plaintiff. They were intended and used for the convenience of all the tenants of the building. The plaintiff had the undoubted right to use the stairway for a convenient Avav of access to and egress from the apartments leased by her. The defendant had no right to make the way inconvenient or dangerous to her use. Dollard v. Roberts, 130 N. Y. 269; Peil v. Reinhart, 127 N. Y. 381; Looney v. McLean, 129 Mass. 33.

2. The contract in evidence, if received, could only go to prove an irrelevant fact. Its exclusion was not erroneous.

3. The fact itself of the plaintiff’s good health previous to the accident, together with the fact that impaired health followed it and continued, is evidence which tends to prove that the accident was the cause of the impairment of health, and, in some circumstances, would alone be sufficient to establish it. But this evidence was supplemented by the testimony of the physician who dressed her wounds and attended upon her recovery. He testified to nervous shock and serious derangement of the nervous system immediately following the accident, where no such trouble existed before. The evidence was competent and sufficient to support a verdict that the accident was the cause of the impaired health. There was no error in the reception of the testimony, or the refusal' to strike it out.

4. The principal objection urged against the charge, and relied on, relates to the definition of the term proximate cause.” The court said: “ The proximate cause is an immediate cause,— a cause which does not require the intervention of any other cause. It is also sometimes defined to be a cause from which a person of ordinary intelligence would anticipate or might anticipate the result -which is claimed to have followed.” The most obvious criticism of this instruction is that it does not instruct. To be useful, an instruction should not, as a rule, be the statement of a mere legal proposition, but should state the rule of the law as applicable to the facts of the- particular case. No doubt all that the judge said Avas correct, but it may well be doubted if it at all illuminated the case to the apprehension of the jury. The “ proximate cause” is the immediate cause,- — in the sense of nearest cause,— and does not admit the intervention of any other cause. It is also sometimes defined, as the judge stated, as' a cause from Avhich a person of ordinary intelligence should anticipate some accident. But it may well be doubted if all tbis definition really conveyed to tbe jury any adequate information of wbat is meant by tbe term “proximate cause,” as applied to tbis particular case and accident. In tbis case tbe cause of tbe accident was manifest. It was tbe presence of some obstructive matter, on wbicb tbe plaintiff stumbled or slipped. Tbe case called for no discrimination between proximate and remote causes. Tbe one cause wbicb appeared Avas sufficient if it was proximate in tbe legal sense. Tbe sole question was, Was tbis cause proximate to tbe accident? Tbe test is whether it is such that a person of ordinary intelligence and prudence should have foreseen that an accident was liable to be produced by that cause. Tbe judge informed tbe jury that it was sometimes defined in that way. It would probably have been more helpful to tbe jury bad be stated directly that that was tbe test to be applied in this case. But be Avas not asked to give that instruction. Wbat the judge did give was not erroneous. It was not so luminous as it might have been. If tbe defendant desired more full or more direct instructions, she should have asked for them. McCoy v. Milwaukee St. R. Co. 88 Wis. 56.

5. The defendant did not elaborate tbis point in' bis brief, and it is not quite certain to wbat it was intended to be applied. It is supposed, however, that it relates more especially to tbe fourth question of tbe defendant’s proposed special verdict. It was: “Was tbe presence of water, rubbish, or debris, on tbe floor of the ball, tbe proximate cáuse of the accident?” At least, tbis Avas the question proposed to cover tbis point of proximate cause. It is not perceived in - wbat respect the fifth question in tbe verdict, as found by tbe jury, fails to cover tbe ground intended to be covered by this question.

6. Tbe only grounds alleged of insufficiency of tbe special verdict not sufficiently covered by wbat has already been said relate, to tbe. question whether the defendant bad sufficient notice of tbe condition of tbe hallway and stairs. Tbe verdict finds that she bad knowledge of its condition “ at the time of the accident.” It is said that this is not sufficient notice; that she should have had notice a sufficient time before the accident to have enabled her to have removed the cause of danger. But it was not necessary that she should have actual knowledge of the defect. Her duty was that of due care. Ignorance of the defect was no defense. Lindsey v. Leighton, 150 Mass. 285; Wertheimer v. Saunders, 95 Wis. 573.

7. This is covered by what has been already said.

No reversible error is found.

By the Court.— The judgment of the circuit court is affirmed.

The appellant moved for a rehearing, and the following opinion was filed December 10, 1897:

NewmaN, J.

The motion for a rehearing is based upon criticism of the opinion which holds that part of the charge of the trial court which attempted to define the term proximate cause not erroneous. The precise question made is whether it was erroneous, on the facts of the case, for the court to say: “ The proximate cause is the nearest cause,” or, as the argument on the motion puts it, the di/rect cause. It is undeniably true, on the facts of the case, that the nearest cause, in the order of causation, to the accident, was both the direct and thq proximate cause of the accident. So the jury could not well be misled by the definition which the court gave, although, clearly, it was defective as a comprehensive definition of the term “ proximate cause.” But it is no part of the office of instructions to give comprehensive definitions of legal terms, nor to state mere abstract propositions of law. It is, rather, to state clearly so much of the-law of the subject as is applicable to the facts of the particular case. On this theory of the office of instructions, the instructions criticised cannot be denounced as erroneous. So far as they went, they were not erroneous. The real criticism to which they are liable'is, perhaps, that they did not go so far as was desirable. But the facts of the case were simple, and easily understood. It required no profound or extensive exposition of the law of proximate cause to enable the jury to determine whether the evident cause of the accident ivas the proximate cause. Certainly, if the defepdant desired further or more definite instructions, she should have asked for them. There was no misdirection.

By the Court. —The motion for a rehearing is denied.  