16 S.D. 33 | S.D. | 1902
This is an action by the plaintiff, as widow of Philip Patterson, to recover damages for the death of her husband, who was killed by the falling of a building in the city of Watertown, in June, 1897. Verdict and judgment were in favor of the plaintiff, and the defendant has appealed.
On the trial the defendant objected to the introduction of testimony by the plaintiff for the following reasons: “First, That the complaint does not allege that the defendant had any notice of any defect in the building, either before or at the time of the execution of the lease or afterwards before it fell. Second, The complaint does' not allege that the building was leased for the purpose of a dwelling house, but that it was leased to be used as a saloon. Third, Does not allege that the plaintiff’s husband did not know the condition of the building prior to the time it fell. Fourth, That the defendant, ■ in the absence of covenants to repair in the lease, would not be liable for any injury caused by the condition of the building, Fifth, That the complaint does not state facts sufficient to constitute a cause of action.” These objections were overruled, and this ruling of the court will be first considered. The complaint states in substance, after the averments, that the defendant is a corporation, and that the plaintiff is the widow of Philip Patterson; that the said Patterson lost his life on the 21st day of June, 1897, by the falling of a certain building owned by the defendant situated in the city of Watertown; that part of the
The first objection to the introduction of any testimony was that it was not alleged in the complaint that the defendant had any notice of the defect in the said building, either before or after the execution of the said lease and before the building fell. It will be observed that the complaint alleges that the defendant negligently permitted the said building to be in an unsafe condition, which resulted in its collapse, but it nowhere alleges that the defendant had any knowledge of the condition of the building or information as to its condition. The appellant strenuously contends that unless it is alleged in the complaint that the defendant had actual notice of the defect in the construction of the building it is not liable for the damage resulting from its fall. The respondent, on the other hand, contends that the owner of the building is responsible for any injury occasioned to another by his want of ordinary care, and that the law in this jurisdiction upon this subject is declared by section 3603. Comp Laws, which reads as follows: “Every one is responsible, not only for- the result of his wilful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has. wilfully or by want of ordinary care brought the injury upon himself, The extent of liability in such cases is defined by the title on compensatory relief.” The liability of a party for injuries resulting from the
The defendant has assigned as error numerous rulings of the trial court upon the admission and rejection of evidence, the more important of which is the ruling of the court premitting the plaintiff to give evidence as to the manner in which the building was constructed and the materials used in its construction. The objection made was that the same was incompetent, immaterial and not within the issues of the case; that the construction of the building was not within the issues. The objection^ was overruled, and, we think, properly, for the reason that the manner in which the building was constructed was alleged in the complaint, and the reason why it was a dangerous and unsafe building was stated by the plaintiff to be that it was constructed of grout, and that the building had rotted and decayed. -The evidence was therefore both competent and material for the purpose of establishing the plaintiff’s case. We are of the opinion, therefore, that it was perfectly competent for the plaintiff to show the manner in which the building was constructed and the nature of the material used in its construction.
The defendant requested the court to direct a verdict in its favor on the grounds heretofore stated in its objection to the introduction of testimony. This motion was denied, and properly so, for the reason before stated. The defendant thereupon requested the court to give the following instructions: “(1) If you find from the testimony in this action that Berg & Olson rented the premises described in the'Complaint from the defendant, and that there was no covenant in the lease to repair, on the part of the defendant, then neither Berg & Olson, or the persons by their permission or at their invitation, could recover for any injury received, in consequence of the fall of the building. (2) If you find from the testimony in this case that the building described in the complaint in this action was constructed in the year 1882, that it had been used during a greater portion of the time since for the purpose of a saloon, people congregating there, going in and out in the ordinary way such places are used, and that there was nothing about the appearance of the building to indicate that it was unsafe or insecure, or that it was constructed improperly or of improper materials then negligence cannot be imputed to the defendant. (3) The fact that the building described in the complaint fell at the time and under the circumstances disclosed by the evidence in this action will not of itself, as a matter of law, establish negligence on the part of the defendant. (4) You cannot impute negligence to a defendant; neither can you presume a defendant to have been guilty of negligence. The question of negligence
The first instruction requested was properly refused, for the reason that it does not correctly state the law. If the building was unsafe and liabla to collapse prior to its being leased to Berg & Olson, and the defendant had notice of its dangerous condition or might, by reasonable care and diligence have ascertained its condition, it would be liable. Where a building has become a nuisance and is leased to a tenant, the owner is liable for any injury that may result from such nui
The second instruction requested was properly refused, for the reason that it ignores the important question of whether or not the defendant could have, by ordinary care and diligence, ascertained the true condition of the building, and the defendant, notwithstanding the existence of all the conditions stated in the instruction, might have been guilty of the grossest negligence in failing to discover its dangerous condition and liability to collapse.
The court properly refused the third request, for the reason that it does not correctly state the law. The fact that the building fell without any apparent cause is prima facie evidence of negligence on the part of the owner. In Ryder v. Kinsey, 62 Minn. 85, 64 N. W. 94, the supreme court of Minnesota, speaking upon this subject, says: “Buildings properly constructed do not fall from slight causes. Therefore, when a building falls without apparent cause in the absence of explanatory circumstances negligence will be presumed; and the burden is upon the owner of showing that' he exercisedf;ordinary care to keep it in a safe condition.” Mullen v. St. John, supra; 1 Shear. & R. Neg. § 5960; 2 Thomp. Neg. 1231. Again, the same court says: “The presumption, then, would be, in the absence of explanatory circumstances, 'that the wall fell because it was in an unsafe condition, and that the defendant was negligent in not exercising ordinary care in properly inspecting and keeping it in repair.” ‘The same rule applies to the fourth instruction requested. The court properly refused the fifth and sixth requests for the reason that they do not state the law correctly applicable to this case. They embody the
The court’s charge to the jury seems, to have been.fair, and satisfactory, as- no exceptions were taken to it. The jury was instructed among other things, as follows: “As material, and prominent questions of fact that are required to be answered by you before reaching a verdict in this case, I suggest the following: First. Was the building in question, at the time it was leased to Berg & Olson, insecure, dangerous, and a nuisance, and liable to collapse and injure or kill persons within or about it at any moment? Second. Was this known to the defendant company, or could it have been learned by the use of reasonable care? Third. Was the injury and death of Philip Patterson brought about in part by his own negligence? Before you can find a verdict for the plaintiff you must find an affirmative answer to the first question — that the building described in the complaint was a nuisance when rented; further, that either this was known to the defendant or could have been learned by the use of reasonable care, and, further, as a condition precedent to the plaintiff’s recovery, a consideration of all the evidence in the case must disclose a want of negligence on his part.” The authorities upon the subject are conflicting, and it is not easy to harmonize them; but the view taken by the court seems to be ■ supported by the weight of authority. With reference to the liability of the owner for injuries to persons caused by defective and unsafe buildings, the following rule may be regarded as settled: If when let, the premises are in a condition dangerous to the public, or with a nuisance thereon, the owner may be liable-to strangers for the injuries
The judgment of the court below and the order denying a new trial are affirmed.