110 F. 99 | U.S. Circuit Court for the District of Southern Ohio | 1899
(orally). I have had occasion since the last trial of this cause to make a careful examination of the questions involved, and, in view of the conclusions I have reached, it is not necessary to take up time in further argument. I may as well dispose of these motions now.
The ceiling and dome of the opera house fell, injuring the plaintiff, and he charges that his injuries were caused by the negligence of the defendants, the lessors and the lessees, in permitting this building to become unsafe and remain in that condition until the disaster resulted. In determining the question of negligence, it is necessary, first, to ascertain what duty the defendants owed to the plaintiff, the failure to perform which constituted the negligence.
As to the lessors: What duty were they under to the plaintiff to keep and maintain this building in a condition of safety? If they were under no duty, if they owed him no duty in that respect, they are not liable for the consequences of the breaking down of the ceiling and the falling of the dome of this building. Ordinarily, when the owner of buildings, whether devoted to public or to private uses, lets them to another, and surrenders possession and control, he is not responsible to the tenant, or to those who may come upon the premises through the invitation of the tenant, for any unsafe condition thereof, whether it existed prior to and' at the time of the letting or arose afterwards. If Brady & Stair desired to obtain a lease of this opera house building, it was there for their inspection and examination; and if they were satisfied with it, and took a lease, and the control and possession of it was delivered to them, the lessors, the Robinsons, are under no liability to them for the unsafe condition
As to the lessees: If the lessees knew of this condition óf unsafety, whether it arose before or after the making of the lease,' or if by the exercise of ordinary care they could have known of it, then they are liable, and must answer in damages to the plain-,’ tiff; and the question I am called upon to determine is whether there' is any evidence introduced by the plaintiff which tends to show (and I have not in mind now the doctrine of the scintilla) negligence on the part of the lessees in failing to know of this unsafe condi-' tion, and in failing to take the necessary steps to prevent the disaster which occurred. If there is, it will be my duty to submit if to the jury and take their judgment and verdict upon it. It is not the function of the court to determine questions of fact, and it is a function which the court must be careful not to usurp. Nobody contends that the lessees knew anything about this unsafe condition ; that is, knew that this truss was rotten; but the claim is that they ought to have known it; that the evidence already introduced shows facts and circumstances sufficient to put them upon notice that would require them to make investigations which would have disclosed this condition, and thereby this disaster might have been averted. That is the question, and if the facts disclosed by the evi~. dence are of a character which would tend to put them upon no tice, requiring such investigations, then the case must go to the jury, whatever opinion the court may have as to the sufficiency Of' the evidence. But, if the circumstances do not tend in that direction, it would be a violation of duty upon the part of the court to submit the case to the jury, resulting, possibly, in the confusión of
The evidence for the plaintiff (and that is all we have before us) shows that there was a spout down the wall, near the end of this truss, leading from the gutter or valley in the roof, through a box set in the wall, and passing through the wall, and that the gutter, box, and spout were in a condition of very bad' repair, and had been for a number of years, and that, in consequence of this condition of repair, when rains fell or the snow came the water would pass into the wall around about this truss, and that there was a condition of dampness in the wall following heavy rains or a heavy fall of snow; and the' inference is drawn, which may be well founded, that through this dampness and moisture, communicated in this way, this condition of rot and decay grew up, but the outward indications of which were to be found only in stains on the wall inside^ in discoloration, and an appearance of dampness on the outside wall, and in the leaky condition of the roof. What notice would these indications give to the lessees? Why, the first thing, it seems to me, the lessees would think of, would be that the leakage would spoil the paper and decorations inside, and that it might after a while cause permanent injury to the wall: but what prudent man, what careful man, would ever have dreamed, from these appearances, that a .rot would set in at the end of the truss, and as a consequence the truss' would break off, as if sheared off, and let the ceiling and dome down upon an audience seated in the auditorium below? Who could have reasonably contemplated anything of that kind, or the possibility of any such condition there? Can it be said, when it is presented, to you upon these indications, that the reasonable man, the prudent man, the careful man, would at once send for mechanics and have the roof taken off and the wall taken down,
I do not think I ought to permit this case to go to the jury upon the suggestion that the case turns upon the question of whether the rot was the result of dampness caused by allowing the' water from the roof to run into the wall, when the real question to be considered is whether the lessees were guilty of negligence in failing to discover the rot, and I am unable to find any evidence tending to show want of reasonable care and prudence on the part of the lessees in that respect. The motion of the lessees therefore will be sustained, and the jury will be instructed to return a verdict for the defendants.