123 Va. 185 | Va. | 1918
delivered the opinion of the court.
A heavy wagon gate, opening into Duke street, in the city of Portsmouth, fell on Oscie Hartung, a boy five years of age, producing injuries for which he brought this action against James E. King and others, owners of . the premises to which the gate was attached. There was a verdict and judgment below in his favor, and the defendants bring the case here for review;
The evidence which went to the jury showed, or tended materially to show, the following pertinent facts: T. B. Hartung, the plaintiff’s father, was, at the time of the injuries complained of, and had been for some years prior thereto, occupying as a residence a house and lot situated at the corner of Duke street and Maple avenue, under a lease from the defendants. A large gate, affording an entrance to a wagon way from the yard to Duke street, was attached by hinges to the corner of a stable and opened out into the street. It was so adjusted that when opened it
On the morning of the accident, T. B. Hartung, who was a drayman, went out very early to his work, driving through the gate and leaving it open and resting against the side of. the stable. Later on in the day, the boy, who was at the time driving a chicken out. of the yard, ran out into the street opposite the gate, which just at that moment fell upon him, causing the injury for which this action was brought. An examination showed that the gate had pulled loose from the post.
. There was a sharp conflict in the evidence as to the condition of the corner post and the sufficiency of the gate fast
The declaration rests solely upon the theory that the plaintiff occupied the relationship, not of a tenant or member of a tenant’s family, but of a stranger to the owners of the property, and the right to a recovery is based upon an alleged breach of the duty of the defendants to keep their premises abutting on the street in such condition as not to result in injury to travelers. The relationship of landlord and tenant is not invoked or involved in the case.
At the time of the accident the boy was not on the premises, but was rightfully in the street, and the fact that the premises were in the exclusive possession of a tenant" is immaterial. The owners themselves created the danger. See 13 R. C. L., section 349; Hill v. Norton, 74 W. Va. 428, 433, 82 S. E. 363, Ann. Gas. 1917 D, 489. The case is different in this respect when the tenant himself, without the authority or knowledge of the owner, creates a dangerous condition. See 16 R. C. L., section 593.
We are unable to differentiate this case in principle from the cases of McCrorey v. Thomas, 109 Va. 373, 63 S. E. 1011, 17 Ann. Cas. 373, and McCrorey v. Garrett, 109 Va. 645,
There is considerable confusion and conflict in the authorities as to whether abutting property owners are insurers of the safety of travelers against the dangerous condition of their'premises.
The rule is thus stated in 1 Thompson on Negligence, section 1199: “The owner of property abutting on a highway is under a-positive duty to keep it from being a source of danger to the public by reason of any defect in structure, repair, use or management which reasonable care can guard against. Reasonable care must be exercised by such owners to keep their buildings safe, to the end that they do not fall in whole or in part, or that objects do not fall over them, injuring passersby on the sidewalk or street; but such an owner is not a guarantor or an insurer of the absolute safety of the sidewalk, and proof of negligence on his part is necessary to charge him with liability for an injury received thereon.”
“The awning had been erected by the independent contractor and turned over by him to the defendant and accepted by him a year or more before the plaintiff was in*191 jured; yet, by the instruction in question, the court was asked to tell the jury, in substance, that the defendant was not liable for the plaintiff’s injury if the awning was erected by a competent, independent contractor and turned over to the defendant in apparently good condition,, unless it further appeared that some defect existed in the awning at that time or subsequently developed therein which should have been discovered by the defendant in the exercise of ordinary care, or that the awning was negligently used or managed. In the event the jury had believed that the awning had been erected by a competent, independent contractor and accepted by the defendant from him in an apparently good condition, the instruction would have required the plaintiff, in order to recover, to prove that some defect existed in the awning at the time of the defendant’s acceptance, or subsequently developed therein, which should have been discovered in the exercise of ordinary care, or that the awning was negligently used or managed. To have placed this burden upon the plaintiff in a case like this would have been clearly erroneous.” See also Gorham v. Gross, 125 Mass. 232, 28 Am. Rep. 224.
The subsequent case of McCrorey v. Garrett, supra, goes a step further than the Thomas Case and holds that in this class of cases, the test of liability is not the lack of proper care on the part of the owner or occupier of the building, “'but the fact of resulting injury, through no fault of his„ to the party using the street.” In that case Judge Harrison quotes with approval the following extract from Wood on Nuisances: “It would seem that all sign boards, cornices, blinds, awnings and other things projecting over a walk, or so situated with reference thereto that if they fall they may do injury to travelers, are nuisances unless so secured as to be absolutely safe, and the person maintaining them is liable for all injuries arising therefrom, except such as are attributable to inevitable accident.” (Italics added.) It
We may add that while this court in the Garrett Case held that owners or occupiers of abutting property are insurers of the safety of their premises as to passers-by on the street, and thus went further than in the Thomas Case, there is no necessary conflict between the two decisions, because in the Thomas Case it was not contended that the defendant was such an insurer, and, inasmuch as the plaintiff in that case recovered upon the theory of negligence and not upon the theory that the awning was a nuisance per se, there was no occasion, in affirming the judgment, to declare that the awning was per se a nuisance. It is apparent, however, upon reading Judge Buchanan’s opinion in the Thomas Case, that he had in mind this distinction, which is the subject of much conflict in the authorities; and, with his usual accuracy, he shows that no issue was made in the case as to' a nuisance per se.
It is manifest, therefore, that in the instant case the defendants were accorded a trial under a rule more favorable than they were entitled to under the decisions in this State.
There was no error in the judgment complained of, and it must be affirmed.
Affirmed.