126 Minn. 144 | Minn. | 1914
On, and for some time prior to, December 30, 1910, defendant was the owner of a hrick flat building fronting on East Eleventh street in the city of St. Paul. As built the building was arranged for eight families, two on each floor of the four floors. The lowest floor was partly below the surface. A brick wall divided the building from front to rear and from bottom to top into two equal parts, with this modification, that when this dividing wall came to a certain distance from the front it divided, leaving room between the branches for hall and stairways, then came together again and ran to the rear wall. In the opening, thus formed in the center of the building, were placed the front and back stairways, and between the two stairways a glass and wooden partition ran from the lowest to the topmost floor. Adjacent to this partition was a board-chute, running from the top to the basement, about two and a half feet square. This chute had small square doors accessible on each floor. The purpose and use ■of this chute was to receive waste papers and dry rubbish which the tenants desired to get rid of, or send down to the janitor for removal. About two o’clock on the morning of December 30, 1910, fire broke ■out in this building and spread so rapidly that plaintiff’s intestate, who was sleeping in a room in the easterly part of the top floor, lost her life. This action is to recover damages for the next of kin of plaintiff’s intestate, whose death was caused by the alleged negligence -of the defendant. A recovery was had, and this appeal is from an order denying defendant’s alternative motion for judgment notwithstanding the verdict or a new trial.
The defendant is charged with many and varied acts of negligence which caused the death of plaintiff’s intestate, Jeanette Wilfond, but the court permitted the jury to consider one only, namely,
The east side of the top floor of this flat, consisting of eight rooms, was leased by defendant to one Mrs. Moore, who rented out the different rooms to so-called roomers — persons, without families, who worked and boarded away from the flat building. It is contended by the defendant that her written lease with Mrs. Moore prohibited subletting, except upon written consent of defendant, that no such consent had been obtained to the renting by Jeanette Wilfond and hence she was a trespasser to whom defendant owed no duty or care. The court instructed the jury that, unless the preponderance of evidence showed that defendant “with full knowledge of the fact consented to and acquiesced in this custom and practice of Mrs. Moore to sublet her rooms in her flat to tenants,” plaintiff had no standing in court to urge any claim whatever against defendant for the death of her intestate. The evidence abundantly sustains the verdict on the proposition that Miss Wilfond was rightfully in the building. We do not think defendant was entitled to the instruction that plaintiff was required to prove that Miss Wilfond had a room in the building with the knowledge and consent of defendant. If the practice and custom of her tenants generally to rent out rooms was known to and acquiesced in by defendant, it was a waiver of the clause against subletting to some particular person, especially in the absence of any claim that the particular person was for some reason objectionable. It seems to us that defendant’s duty with respect to fire danger from the condition of this chute is not confined to that of tenants in the building, nor need it necessarily be traced to contract obligations. The requested instruction applying a more restricted rule to the right of plaintiff’s intestate to be protected against defendant’s negligence than the one given to the jury was properly refused.
Was there evidence that the congested chute caused Jeanette Wilfond’s death? This is undoubtedly the close question. Defendant contends that the fire started near the top of the building and on the easterly side, because that part sustained most damage. It should, however, be remembered that here was an open well reaching from the bottom to the top of the building. In such a place if the fire starts at the bottom, and combustible materials extend to the
We find no error in the record and are of opinion that the verdict is fairly sustained by the evidence.
Order affirmed.