The following opinion was filed March 31, 1953:
CuRRiE, J.{on rehearing). In our original opinion herein we stated that it did not lie within the province of the jury to find that the defendant landlord violated the safe-place statute by failing to guard the trap-door opening with a railing in the absence of any ordinance or safety order so providing. We further held that Order 5410 of the Wisconsin state building code did not apply inasmuch as when the defendant landlord acquired title in 1938 there was no structural defect in the premises, and thereafter it never had any right of entry or possession to enable it to comply with Order 5410, which we stated was promulgated so as to be effective July 29, 1942.
Counsel for the respondent plaintiff in their brief in support of their motion for rehearing for the first time called to the attention of the court the provisions of Order 5409 which became effective'October 9, 1914, as part of the state building code and remained unchanged until July 29, 1942, when it was amended and renumbered 5410. Such original Order 5409 provided as follows:
“Trap doors and floor openings. Every opening through any floor shall be guarded by a substantial enclosure or rail at least three feet high. . . .”
Because Order 5409 was adopted before George Baldauf remodeled the building in 1924 to install the trao door, and *539cbefore Baldauf and wife conveyed the premises to the defendant Baldauf Corporation in 1938, we granted plaintiff’s motion for rehearing.
Although the state building code does not specifically refer to its provisions as "safety orders,’’ the first paragraph thereof reads as follows:
“The building code has been adopted by the industrial commission in discharge of its duties under sections 101.01 to 101.28, inclusive, of the statutes of Wisconsin. It supplements the requirement of section 101.06, to the effect that ‘every employer and every owner of a place of employment or a public building now or hereafter constructed shall so construct, repair, or maintain such place of employment or public building and every architect shall so prepare the plans for the construction of such place of employment or public building as to render the same safe.’ ”
In Burling v. Schroeder Hotel Co. (1940), 235 Wis. 403, 409, 291 N. W. 810, this court referred to Order 5116 (2) of the state building code, relating to handrails on stairways, as a “safety order.” We are satisfied that old Order 5409 (now 5410) did constitute a safety order, the violation of which would constitute a violation of the safe-place statute.
As such order specifically relates to trap doors, the words “every opening through any floor” thereof must be deemed to embrace trap-door floor openings. As so construed we cannot hold that it is so unreasonable as to be void. Trap doors do present a hazard‘to safety.' The extract from the opinion of the Oregon court in Staples v. Senders (1940), 164 Or. 244, 96 Pac. (2d) 215, 101 Pac. (2d) 232, quoted by us in our original opinion (262 Wis. p. 538) states that the court does not question the power of the city council of Portland to enact a regulation abolishing trap doors; and, if a city council might enact such a regulation it would seem that the industrial commission possesses the power to do likewise. Therefore, while the effect of old Order 5409 may be to destroy much of the utility of a trap door, we are not *539dprepared to hold it to be void on the ground that the commission in adopting it exceeded its powers.
Counsel for the defendant landlord contend that the trap door itself without a railing constitutes an “enclosure” of the trap-door opening within the meaning of old Order 5409, and therefore no railing was required. In order to pass upon this contention, it is necessary to resort to the definitions of the word “enclosure.”
Webster’s New International Dictionary (2d ed.), defines the noun “enclosure” as follows:
“1. Act of enclosing; state of being enclosed, shut up, encompassed, or cloistered; specif, the separation of land from • common ground by a fence or barrier. See Inclosure.
“2. That which is enclosed, or placed within something: (a) A space enclosed, or fenced-up. (b) A thing enclosed in a package, as a letter in the envelope with another.
“3. That which encloses, as a barrier or fence.”
The definition of the noun “enclosure” in Funk & Wag-nail’s New Standard Dictionary of the English language is as follows:
“1. The act of enclosing, or the state of being enclosed; especially, the fencing of land to separate it from other or common lands; hence, the reduction of things common to private appropriation.
“2. An enclosed object or space. Especially: (1) A piece of land surrounded by a fence, wall, hedge, or the like. (2) Anything enclosed in an envelope, wrapper, or letter, as a check or sample. (3) That which encompasses, encloses, or-shuts in, as a fence, wall, case, or wrapper. (4) Petrol. Inclusion, inclosure.
“Syn.: See Boundary, Circumference.”
42 C. J. S., p. 524, defines “inclosure” or “enclosure” as follows:
“In general, that which encompasses, encloses, or shuts in, as a fence, wall,'case, or wrapper; also, that which is enclosed, or placed within something; and, specifically applied to land, a term which signifies land inclosed with some visible *539eand tangible obstruction, such as a fence, hedge, ditch, or the like; and so a wall, hedge, or fence, under circumstances showing a substitution of one for the other, has been held sufficient to constitute an enclosure.”
A trap door covers the opening beneath it rather than “encloses” the same, and nowhere do we find the word “covers” in any of the foregoing definitions. We deem that there is implied within the meaning the word “enclosure,” as used in said safety order, an encompassing or surrounding of the opening, and if this be true, obviously the trap door itself is not an “enclosure.”
We therefore construe old Order 5409 as having required that the trap-door opening, when it was originally cut through the floor in 1924, should have been protected by a substantial railing or barricade at least three feet high surrounding the opening, except the north side from which the stairs led down to the basement below. While this safety order contains no exception with respect to that end of the opening from which the stairs led down, such exception must be implied, otherwise the stairway would be unusable.
The expert witness for plaintiff, Arthur L. Seidenschwartz, an architect, stated that a “removable guard” could have been provided at the north end of the opening “so that anybody, when they wanted to go to the basement, would have to remove the guard to go down.” In that way, the stairs would be enclosed on all four sides. Another expert witness, Arthur C. Dietrich, an engineer, testified that he would not recommend erecting a barricade which would prevent anybody from using the stairway, but recommended a barricade, or gate, or railing, which could be moved so as not to destroy the utility or use of the stairway. The testimony of these two expert witnesses would make it a jury question as to whether the failure to provide such a removable guard or gate for the north end of the trap-door opening (from which the stairway led to the basement) constituted a violation of the safe-place statute.
*539fThe requirement of the safety order that all but the stairway end of the opening be enclosed with a substantial rail or barricade at least three feet high destroys in a large measure the utility of a trap door because it makes unavailable for use the floor area within the railing so that the use of a trap door would thereby be very little more advantageous than an ordinary partitioned-off stairway, and a jury, by finding a violation of the safe-place statute in not providing such a removable guard or gate at the north end of the opening, would not be requiring “the unreasonable” of the owner who constructs such a stairway and trap-door opening.
Counsel for the defendant landlord contend that even though this court does find that old Order 5409 required a rail or barricade to be constructed by Baldáuf around the trap-door opening when he instálled the trap door, nevertheless, the Baldauf Corporation having never possessed the right of possession or re-entry to the premises since acquiring the title in 1938, so as to enable it to comply with the safety order, cannot be held liable in this action for failure to comply with such safety order. However, when the Baldauf Corporation acquired title in 1938, the building was structurally unsafe because of the failure to have complied with Safety Order 5409, and such corporation, by its voluntary act of acquiring title, stepped into the shoes of the previous owner with respect to the liability imposed by the safe-place statute to future frequenters of the premises arising by reason of such structural defect. The briefs of counsel, which are replete with authorities on the other points of the case, cite no authorities in point on this particular issue, and we assume the reason therefor is that counsel have been unable in their research to find any. Neither have we. We believe, however, that our conclusion, that the grantee of an owner, who acquires title to a building which is structurally unsafe because of failure of the prior owner to comply with the requirements of the safe-place statute, assumes the liability of “own*539ger” to a frequenter who is subsequently injured, is in accord with the legislative purpose underlying sec. 101.06, Stats.
From what has already been said herein, it is apparent that a basis existed for the finding by the jury in its special verdict that the defendant landlord, as owner of the building, failed to have the premises “in the vicinity of the trap door as safe as the nature of the building would reasonably permit ... in respect to providing an adequate railing around said trap door.” As pointed out in the original opinion herein, the defendant landlord cannot be held liable in this respect for failing to enter the premises after it acquired title and provide such railing, because possession was exclusively in , the tenant with no right of re-entry in the landlord. The basis of the liability of the present landlord is the result of a condition implied by law under the safe-place statute in the conveyance to it of the leased premises by the former owner because of a then existing structural defect which would have rendered the former owner liable under such statute to future frequenters if he had continued as owner.
This now brings us to consideration of the contention made by counsel for the defendant landlord that prejudicial error was committed by the trial court in instructing the jury that plaintiff was a frequenter, when, as contended by counsel, she was a trespasser. Because of the ground upon which we based the result reached in our original opinion we found it unnecessary to pass upon this last-mentioned issue.
It is claimed that all of the trap-door opening except the north eight inches thereof was so partitioned off by a counter and partition wall from the remaining part of the premises used by patrons of Pulos’ cleaning and shoeshine establishment as to clearly indicate that it was reserved for the private use of the proprietor and his employees to which patrons were to have no admittance. Furthermore, there was testimony that Pulos’ son warned the plaintiff, before she stepped back into the vicinity of the trap-door opening, not to go *539hbehind the counter and that he called her attention to the danger of the trap-door opening, but that in spite of such warning she did go back of the counter and as a result thereof fell into the opening. However, the trial court in his instructions to the jury stated:
“The plaintiff in this case was a frequenter of the portion of the building in question occupied by Mr. Pulos as his place of business as that term has been defined and is used in the statute.”
In Newell v. Schultz Brothers Co. (1942), 239 Wis. 415, 1 N. W. (2d) 769, the plaintiff, a customer in the defendant’s store, walked through a doorway into an areaway and fell down a flight of stairs. There was fastened on the side of the door facing the store proper a large white cardboard sign with large lettering reading, “Employees Only,” and it was necessary for plaintiff to pass through such doorway to reach the stairs, but there is no direct evidence whether the door was open or shut at the time. This court held that the conspicuous sign in question in itself constituted due notice and a warning that no invitation to a customer in the store to enter the areaway could be implied, or be deemed to have existed, and therefore plaintiff was a trespasser and not a frequenter. As a trespasser the defendant store owner owed no duty to the plaintiff under the safe-place statute.
Other cases, holding that if there is adequate notice to a frequenter that he should not go into a part of a public building and, in spite of such notice he disregards the same and enters into the forbidden area, he becomes a "trespasser so as not to be entitled to claim damages under the safe-place statute, are: Harder v. Maloney (1947), 250 Wis. 233, 26 N. W. (2d) 830; Ryan v. O’Hara (1942), 241 Wis. 389, 6 N. W. (2d) 209; and Grossenbach v. Devonshire Realty Co. (1935), 218 Wis. 633, 261 N. W. 742.
On the basis of the foregoing authorities there was sufficient evidence in the instant casg to raise the issue of plaintiff *539ibeing a trespasser instead of a frequenter, if she fell into the trap-door opening from the side back of the counter, rather than into the north eight inches of such opening, and it therefore was error for the learned trial court to instruct the jury as a matter of law that she was a frequenter. Counsel for plaintiff urge, that inasmuch as the jury found that the plaintiff was not negligent in going behind the counter in the vicinity of the trap door, this in itself absolved her from being a trespasser. However, the jury in so finding may have been influenced by the erroneous instruction that she was a frequenter. Inasmuch as a new trial must be had, a separate question should be inserted in the special verdict requiring a specific finding on the issue of whether plaintiff was a trespasser at the time and place of the accident. With respect to such question, if the evidence on such issue is substantially the same at the new trial, an instruction should be given which will clearly inform the jury, that if it concludes plaintiff fell into the north eight inches of the opening (which portion of the premises was located within the limits of the public aisle), then the jury should answer such question so as to find that she was not a trespasser.
By the Court. — The mandate of the previous opinion is modified so as to provide that judgment is reversed as to the defendant Baldauf Corporation only, and cause remanded for a new trial consistent with this opinion.