124 Ky. 411 | Ky. Ct. App. | 1907
Hugh Brady is the owner of a brick building located on the northeast corner of Sixth and Broadway streets in Louisville". He rented the building to the United Laundry Company, which used part of the lower floor as an office and sublet the remainder of the building to Mrs. Mary Donnelley, who in turn sublet two rooms to W. E. Mitchell, in which he lived with his family. Attached to the building there was a tin down pipe to take the water from the roof. The down pipe extended down the w'all of the house on the Sixth street side and about five feet above the sidewalk it entered an iron down spout, the lower end of which rested on a metal gutter which extended across the sidewalk through which the Water was conveyed to the sewer. The iron pipe was about five feet long and something like six inches in diameter, half round in shape, the flat side being placed against the side of the -house which abuts immediately upon the sidewalk. • The iron pipe . weighed about 80 pounds. On June 3, 1903, Mitchell’s little son three year old, was on the sidewalk in charge of his mother who was near by, when .the iron pipe, without warning, fell down, striking the child upon the head and killing him almost, instantly. "W. E. Mitchell qualified as the administrator of the child, and brought this action to recover for his-death against Hugh Brady, the owner of the property, the. United Laundry Company, who leased it from him, and the City of Louisville, charging that the iron spout was permitted to. become and remain in a. dangerous condition, and that this was known, or could have been known to the defendants by ordinary care on their part; that the sidewalk was in a dangerous con
The proof heard on the trial established without doubt the facts above stated. It also showed that the only fastening securing the iron pipe in position was a wire at the top which was wrapped around a nail on either side; that the wire had become rusted and the mortar had been washed out so that the nail on one side had nothing to hold it and had come out, allowing the pipe to fall and strike the child, who happened to be just then near by on the pavement. In the contract between Brady and the laundry company, the property was leased by him to it for five years and it was obligated to keep -the premises in repair and not to permit any part of it to become unsafe or dangerous. There was no evidence tending to show notice on the part of the city of the dangerous condition of the spout, and, as the danger came from the defective condition of the house and not from any defect in the sidewalk, the peremptory instruction as to the city seems to have been proper, but as to the other defendants, a different rule applies. In Shearman & Redfield on Negligence, sec. 347, the rule is thus stated: “It is therefore, the settled doctrine on this subject that, if an abutting owner makes an excavation upon his land adjacent to, or near a highway, and leaves it unprotected, he is liable to- a traveler on the highway, who, while using ordinary care, falls into it and is injured. So, if he erects a
Prom these authorities, both the owner of the property, Brady, and the laundry company who rented from him and had control of it, are prima facie responsible for the injury to the intestate under the proof; that is, the plaintiff made out a prima facie case against them. The owner of a building erected over the sidewalk is not absolved from liability to a person injured by the fall of a part of the building on the sidewalk, by reason of the fact that he has leased the property to. another and the tenant has obligated himself to keep the property in repair. Both the tenant and the owner in such a state of case are responsible. It is incumbent upon the owner to. keep his premises safe, and he cannot relieve himself of this liability by contract with his tenant. It is entirely immaterial that W. E. Mitchell lived in the building, or that Mrs. Donnelley rented to him a part of the building, with or without the consent of the laundry company. The injury was not received in the building. The. fact that Mitchell lived in the building had nothing to do with the injury. The child was lawfully on the sidewalk where it had a right to be without regard to where its father lived.
Mitchell himself Was not at home at the time his child was killed. He offered on the trial to introduce as a witness on his behalf his wife, who was with th'e child at the time. The circuit court declined
We rest our judgment on this ground. There is no- limitation in section 606 upon the right of the wife to testify for herself, except that she may not testify against her husband or concerning any eom
As to the city of Louisville the judgment is affirmed. As to the other appellees the judgment is reversed, and cause remanded for further proceedings consistent herewith.