99 Wis. 333 | Wis. | 1898
At the outset, the question of the liability •of Elihu Colman is of paramount importance. It stands without question on the record that he was the owner of the street-car track at the time of the injury complained of, and had been such for several months prior thereto; that the defective condition of the street existed when he purchased the property; that he then knew of the facts; that the railway company occupied and used the property the same after such purchase as before, but pursuant to an option to buy it back, the particulars of which option were not testified to. The learned circuit judge decided as a matter of law, on such facts, that Colman was not liable for the injury to plaintiff, because the defects in the street were not caused by, nor did they arise ■from, or were they produced by, him. That reasoning hardly meets the facts of this case fully. ' It leaves out the element that Colman continued the defective condition of the street by allowing the railway company to hold under him without any covenant on its part to remedy such condition. "With the added element, the decision has some support by some things said in Fellows v. Gilhuber, 82 Wis. 639, where the awning in front of an hotel was thrown down, partly through defects existing in one of the supporting, posts, whereby a guest at the hotel, standing on the walk, was in
The law is firmly established bj^ the great Aveight of authority, that, as between the owner of leased property and a mere stranger, the owner is liable for an injury to the latter, caused by a dangerous defect in the property existing at the time of the lease, unless protected by a covenant binding the lessee to remedy such defects; and there is much authority that he is liable anyway, that is, that he cannot shift the liability for known existing dangers onto the lessee by a covenant to repair. But there is no necessity for discussing the conflict in that regard, in this case, for there is nothing in the record to indicate that the railway company was under any obligation to Colman to repair the defects in the street caused by the railway track. So far as appears from the evidence, the company continued in possession of the property without any agreement other than a mere option to purchase.
The rule appears to be very firmly established as above indicated, that under circumstances such as mentioned in the foregoing authorities, there being no covenant to repair or remedy defects on the part of the tenant, the liability of the owner for injuries thereby received turns on knowledge, or reasonable means of knowledge, of the existence of the defects on the part of such owner. Probably no case can be found that more nearly touches this at every point than
Further citations appear to be unnecessary. The rule on which they proceed is quite elementary, and may be stated thus: If a person purchases premises which are in a defective condition, with knowledge, or reasonable means of knowledge, of the defects, and then leases the same to another, or allows such other to hold possession of such premises .under such conditions as to indicate permission to continue the defects, and a third person having no connection with such other, without fault on his part, is injured by reason of such defects while rightfully in the vicinity of the danger, such purchaser is liable to respond in damages to such third person for such injury.
Applying the foregoing to this case, it must be held that Colman, by reason of his ownership of the property and knowledge of its dangerous condition when he purchased it and up to the time of the injury complained of, was liable to-the plaintiff. His allowing the railway company to remain in possession, especially without any agreement on its.part to repair the street, did not operate to relieve him from responsibility. As said in Dalay v. Savage, 145 Mass. 38, that the railway company was also liable, is no defense for Colman, who held the title and was the actual owner of the property.
There is nothing in the foregoing inconsistent with what was decided in Fellows v. Gilhuber, 82 Wis. 639, or Dowling v. Nuebling, 97 Wis. 350. In the latter case the contest was .between the landlord and his tenant.
What has preceded leads to a consideration of whether
It is argued that such construction of the statute throws much embarrassment in the way of recovering from municipal corporations in such cases as this, because it requires great caution in order to bring into the first controversy all persons liable for the injury, other than the city, who are so circumstanced as to be liable to indemnify it. That is hardly a sufficient reason for adopting a different construction, even if the language were of doubtful meaning. There is no liability on the part of the municipal corporation at all, independent of the statute. The law creating the right, being in derogation of the common law, is to be strictly construed in favor of the public corporation, not in favor of-the claimant for damages. The section under consideration,
It follows from the preceding, on the undisputed evidence in the case, that plaintiff ought not to have recovered, because of failure to prove performance of the condition precedent, requiring plaintiff to exhaust all legal remedies against the persons primarily liable, before proceeding against the city. Th.e condition was properly pleaded and insisted upon at the trial.
It is contended that the verdict was contrary to the evidence on that subject of contributory negligence. Any discussion of that appears to be unnecessary. Suffice it to say, however, that a consideration of the evidence preserved in the record leads to the conclusion that the question was properly submitted to the jury.
It is further contended on plaintiff’s appeal, that the court ■erred in not limiting the defendant, in making its defense, on the theory that the recovery against the railway company was conclusive on the city as to the injury, the cause of it, the amount of damages, and notice to the city. That was pressed on the attention of this court with much earnestness and learning by the eminent counsel who argued the plaintiff’s side of the case, and many authorities were cited in support of the position, all of which have been carefully considered, and none of which, in our judgment, fits the facts
The result of the foregoing is that the trial court rightly held that the defendant was not concluded on any question in respect to its liability, by the judgment in the action against the railway company, and e'rred in deciding that Colman was not a party primarily liable within the meaning of the city charter. Therefore both appeals must be decided in favor of the defendant, and the judgment reversed accordingly and the cause remanded for a new trial.
By the Court.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.