71 Vt. 98 | Vt. | 1898
The action is case, for the recovery of damages sustained by the plaintiff by reason of falling through an opening in a block where the floor had been taken up to make repairs. The court ordered a verdict for the defendants, to which the plaintiff excepted.
The general situation and condition of the building were not in controversy. The injury was received in a three-story brick block, known as the Billings block. The defendants, Betsey C. Sparhawk and Vida Billings Grout, were the owners of the block, and the defendant, Milo Lyman, was the superintendent of the repairs being made.
The Billings block was originally a three-story brick block. The lower floor was divided into two stores, with a
In the season of the year 1895, Wayne Bailey was the agent of the owners of this Billings block, and had the entire care and management of the block and of the renting of the rooms in it. It had been determined by the owners to have extensive repairs made upon the block that season, and Mr. Bailey had charge of them. Among the repairs to be made, according to the plan adopted, was the extending of a light-well from the store, through the second and third stories to a sky-light in the roof. This light-well was to occupy the space of the roof of the old first addition, and be extended therefrom to the sky-light. This required an overhauling of the Odd Fellows’ hall and rooms, and a taking out of the floor where said passage-way was which led into said unfinished room and the old roof under it.
Before the floor in question was taken up, Mrs. Balcom
“I saw Mr. Bailey and asked him if this committee, or Mi's. Balcom, could have that room down there to rehearse in. I asked him if we could hire it; he said, ‘no, you can have it and welcome until they go to making repairs; they are going to making repairs soon, and you can have it until then, if you have a mind to clean it out.’ There was some rubbish in there.”
Q. “Had you any notice whether after that you did take possession of it as such committee, direct the use of it for the purpose of these rehearsals?”
A. “We did take possession of it and used it.”
Q. “When did you begin — When was this conversation with reference to the time this accident occurred, which was the twentieth of September?”
A. “Somewhere about a week or ten days previous to that.”
Q. “At the time you had the talk with Mr. Bailey to procure the use of this room, that matter of changes and putting in this light, it was talked over and considered?”
A. “Yes, sir. It was talked over.”
Dr. Marstin further testified that he told Mr. Bailey that Mrs. Balcom wanted the room, and no arrangement was
Mr. Bailey testified to the conversation substantially the same as Dr. Marstin, and that Dr. Marstin knew of the plans for repairs. He gave the conversation more in detail, but to the same' effect. This was all the evidence^there was upon the subject of any conversation between any one and the owners of the building or their agents, as to the use of the room.
On the evening of the accident, when Mrs. Balcom went to the room, the floor of the passage-way was taken up, the boards thrown into the room that had been used for rehearsals, and plank laid across the passage-way to this room. Mrs. Balcom testified that Mr. Moore told her that it was a dangerous place, that she could never rehearse there and that she replied, “I can fix that.”
William P. Horton, the Noble Grand of the lodge, came
The testimony of the plaintiff tended to show, that he was a member of a band of musicians, of which his brother, Philip H. Brehmer, was the leader; that said leader had been employed by the committee of Odd Fellows to furnish an orchestra for the entertainment aforesaid; that, on the evening of the 20th day of September 1895, the plaintiff was directed to attend a rehearsal in the unfinished room on second floor of the Billings block, to be conducted by Mrs. Balcom; and that about nine o’clock in the evening he went in accordance with said order, and in going to said room over a temporary flooring, put down in said passage-way, said old roof and flooring over the same having been removed, the plaintiff fell, or was thrown off the passage and into the store below, and suffered the injuries complained of.
Giving the testimony the most favorable construction for the plaintiff, it. shows that the only right Mrs. Balcom or any other person connected with the entertainment had to the room, was a naked license to use it for rehearsals until the repairs, which required the floor of the passage and old roof to be taken out, commenced; and when the defendants commenced the repairs, the license terminated by its own limitation. While the license was in force, it relieved the licensee from liability for entering and occupying the room; but, when the license terminated by its own limitation, all attempts to use the room for rehearsals were acts of trespass and wholly without right.
The plaintiff was not on the defendants’ premises by their invitation, permission or procurement. He was there by the invitation of the party whose license to use the room had terminated by its own limitation, and the defendants owed him no duty of protection against such accidents as might
Negligence consists in the commission of some lawful act in a careless manner, or in the omisssion to perform some legal duty to the injury of another. It is essential to a recovery in the latter case, to establish that the defendant owed, at that time, some special, clear, legal duty to the plaintiff, or the party injured. Nicholson v. The Erie Railway Co., 41 N. Y. 529.
To authorize the submission of the question of liability to a jury, in an action for negligence, the evidence must fix or tend to fix upon the defendant some personal fault, or its equivalent. Martin v. Pettit, 117 N. Y. 118. The evidence did not tend to fix upon the defendants, or any of them, any legal duty respecting the matter complained of, and the court properly ordered a verdict for the defendants.
Judgment affirmed.