45 Pa. Super. 346 | Pa. Super. Ct. | 1911
Opinion by
Defendant owned a lot of ground at the corner of Washington avenue and Broad street in the city of Philadelphia, having a frontage of 150 feet on Washington avenue, along which was a board fence about twelve feet high, the boards being nailed on stringers and running up and down. In August, 1900, the plaintiff, then about nine years old, came down Broad street, on the sidewalk, and just as he turned the corner on to Washington avenue a high wind blew about thirty feet of the fence over on him, breaking his leg. At the time of the accident the lot was being excavated for the purpose of erecting buildings thereon. The excavation was from eighteen inches to two feet in depth and extended to about a foot from the fence line.
1. The allegation of the statement of claim is that the “fence was negligently, carelessly and insufficiently supported and braced,” and it is argued that proof that it was blown down by the wind would not, of itself, sustain the allegation, either prima facie or conclusively. We need not discuss this question, for there was other evidence tending to sustain the allegation. A witness who had opportunity and occasion to observe the condition of the fence before and after the accident testified: “It was a very rotten kind of fence. It had been up there for years. It was very dilapidated. . . . All the posts in the bottom, where the posts went in the ground, were rotten from the dirt, as posts get.” He testified that he saw the conditions in the afternoon after the accident, and, being asked whether from what he saw he could tell what caused the fence to fall, he said: “I could see that the fence did not take much trouble for it to fall, because it was rotten from the bottom. The posts all showed that. . . . The boards were rotten too.” In connection with this, the testimony as to the excavation must be borne in mind. The owner of the ground upon which such a structure is maintained,
2.. The gravamen of the plaintiff’s complaint is not that there was negligence in excavating too near the fence, but that, in view of all the conditions, including the proximity of the excavation, the fence was negligently, carelessly, and insufficiently supported and braced. This being so, it is not apparent that proof that the excavating was being done by an independent contractor would relieve the owner from responsibility. See Homan v. Stanley, 66 Pa. 464. But apart from this consideration, the court was right in rejecting the offer of the written contract between the defendant and Grinnan. As this contract was not executed until three months after the accident, it was incumbent on the defendant to show preliminarily that it was the mere embodiment in writing of the oral contract that existed between the parties at the time of the injury; in other words, that it embraced all the terms, and no others, of the oral contract. The testimony upon this subject, when viewed as a whole, did not meet this plain
3. For the purpose of showing that he was not in possession and control of the fence at the time it fell, the defendant offered in evidence an agreement, under seal, between him and the American Bill Posting Company, dated November 1, 1897, whereby the defendant “let unto said lessee the following fences for advertising purposes described as follows subject to the terms and conditions hereinafter stated.” Here follows a description of several fences, and amongst them the following: “Northeast corner Broad and Washington avenue, containing sixty-six feet on east side of Broad street, and one hundred and fifty feet on north side of Washington avenue.” In a subsequent part of the instrument it is stated that “this lease is based upon the fact that sixteen hundred lineal feet is leased as advertising space.” This throws some light upon the nature and effect of the agreement as understood by the parties. The term mentioned in the instrument was one year, and the annual rental was $400, payable quarterly in advance. Amongst the terms and conditions were these: that the so-called lessee should, at its own expense, keep the fences in good condition and at the expiration of the agreement deliver up the same in good order and repair, ordinary wear and tear excepted; that in the event of any one being injured by the fences or billboards placed thereon, the lessee, and not this defendant, should be responsible for such injury; that the lessee would remove the billboards or fences upon thirty days’ notice, and cease posting bills upon one week’s notice without expense to the lessor, which notice could be served at any time; that should any of the conditions be not fully complied with by the lessee the lessor, upon ten days’ written notice, could cancel the agreement and prohibit
It cannot be disputed that the instrument contains many of the qualities of a lease. The contention that it gave the American Bill Posting Company other and higher rights than those of a mere licensee has support in the cases of Pickering v. O’Brien, 23 Pa. Superior Ct. 125; Oakford v. Nixon, 177 Pa. 76; and Oakford v. Nirdlinger, 196 Pa. 162. But if a lease, it was a lease of a peculiar kind, not differing, in essential particulars, from the lease of the roof and side wall of a building for the purpose of displaying advertisements thereon, such as was under consideration in the two cases last cited. It differs materially, however, from the lease under consideration in Pickering v. O’Brien, 23 Pa. Superior Ct. 125; for the structure was not a mere billboard, but was also a fence, and at the time of the accident was being maintained, presumably, for the benefit and protection of the defendant’s property, of which he was in the occupancy, as well as for the use and benefit of the bill posting company. It was competent for the parties to agree that as between themselves the duty of keeping - the fence in repair, as well as the responsibility for injury to third persons, resulting from omission to perform that duty, should devolve upon the bill posting company. But, as was said in Bears v. Ambler, 9 Pa. 193, so far as the public is concerned, it is nothing to them who may be ultimately liable for the repairs. Therefore, as between the defendant and third persons, this express agreement could not absolve him from the obligation that otherwise would have rested on him by reason of the maintenance of the structure for his purposes. Was there such obligation? The general rule is that where premises are in good repair at the time they are let, and the landlord is
All of the assignments of error are overruled and the judgment is affirmed.