66 Cal. 182 | Cal. | 1884
-If the defendant had both owned and occupied the building to which the awning that fell on the plaintiff was attached, the evidence, indubitably, would be sufficient to justify the verdict. But the defendant, while owning the building, did not occupy it. It was occupied by a tenant, under a lease, in which the defendant did not covenant to keep the premises in repair; and it is urged by defendant’s counsel, that section 1941, Civil Code, did not impose on the lessor of this building any greater or other obligations in that respect than the common law did. Conceding that to be so, is not the evidence sufficient to justify the verdict ? The fact of the awning having been suspended over the sidewalk by a prior owner of the building, is not controverted. And there is evidence tending to prove that prior to the accident the defendant was told that the awning was in an unsafe condition, and that on being so informed she expressed an intention to have it repaired. This she denied, when testifying in her own behalf. There being a material, conflict in the evidence on this question, the jury alone could determine it.
In addition to the evidence above referred to, the plaintiff in-
Where one has secured a privilege from the public on a condition, he cannot, after availing himself of the privilege, avoid his obligation to perform the condition by leasing the premises. Here the awning was erected by a former owner of the building, and has been maintained by the present owner, doubtless for her own profit. The portion of the building under the awning was used for a purpose which may have made an awning very convenient, and the fact of its being there may have enhanced the rent. Under these circumstances, we do not doubt the liability of the defendant to any one who, without fault, was injured through her neglect to keep the awning securely in place.
Judgment and order affirmed.
Thornton, J., and Myrick, J., concurred.
Hearing in Bank denied.