Clapp v. LaGrill

• Citation: 52 S.W. 134,103 Tenn. 164
• Parties: CLAPP v. LA GRILL.
• Decision Date: 12 April 1899
• Court: Supreme Court of Tennessee

52 S.W. 134

103 Tenn. 164

CLAPP v. LA GRILL.

Supreme Court of Tennessee.

April 12, 1899

Appeal from circuit court, Shelby county; L. H. Estes, Judge.

Action for personal injuries by Louis La Grill against W. L. Clapp. From a judgment in favor of plaintiff, defendant appealed. Reversed.

Metcalf & Walker, for appellant.

Brown Hirsh & Brown, for appellee.

WILKES J.

This is an action for damages for personal injuries. It was tried before the court and a jury, and a verdict and judgment rendered for $1,000 and costs, and defendant, Clapp, has appealed, and assigned quite a number of errors. There is practically no contest as to the facts. It appears that Hook & La Grill occupied storehouse No. 233 on Second street, in the city of Memphis, as tenants of Grosvenor & Clapp, who also owned 231, adjoining No. 233 on the north. No. 229, the next house on the north, was owned by the Livermore Foundry Company. These houses were constructed on the same plan, and extended from Second street to a point 3 1/2 feet east of the line of the alley between Second and Main streets. Under each storehouse there was a cellar or basement 13 feet deep, which extended beyond the walls of the houses up to the alley line the space intervening between the west walls of the houses and the east line of the alley being covered by iron gratings. When Hook & La Grill rented the house on the 1st of July, 1896, they found the gratings in the rear of it badly broken and damaged, and called the attention of Mr. Grosvenor to its condition, and it was repaired by removing the iron grating, and substituting for it a wooden grating made of 2x4 scantling. Immediately west of the grating there was a public alley, and between the alley and grating there was a granolith walk two feet wide. This appears to have been flush with the grating, but was distinguishable from it, the walk being artificial stone, and the grating iron. The rear doors of the stores opened upon this grating for tenants to pass over the grating to the sidewalk, or over it into the alley. The injury occurred July 29, 1897, and in the rear of storehouse No. 231, which was at the time unoccupied. Mr. La Grill passed out of the rear door of his store, and started to go to his lunch, on Main street, as was his daily custom. In doing so it was necessary to pass in the rear of No. 231. It appears that about the place the accident occurred a wagon was blocking the alley and walk. This wagon belonged to Mr La Grill. In passing by this wagon, he walked upon the grating in the rear of the stores, where he stepped upon what is called "grating No. 2" in rear of 231, and it gave way beneath his feet, and he fell into the cellar, a distance of about 13 feet, and a part of the grating, falling upon his left thigh, made a wound, and his right arm and left hip were also hurt. It appears that La Grill knew this grating was cracked, and had been all the time from the date he first went into occupation of 233, but he says he did not know whether the crack extended across the entire grating or not. Evidence was introduced to show that this crack had been caused by the piling of barbed wire upon the grating by the foundry company, or by throwing it upon the grating, and that Grosvenor & Clapp did not know that it was cracked, or that there was any defect in it. Mr. La Grill's statement, in substance, is that he came out of his rear door, and in trying to avoid the cobble stones of the pavements, which were rough, his feet being tender, he passed over the grating, and, stepping on the defective plate, went down, and the plate with him. He is not definite as to the point where he went on the grating,--whether he walked on it all the way from his store, or part of the way on the walk,--his only distinct recollection being that he was avoiding the cobble stones. He had frequently passed upon this grating No. 2, and knew it was cracked before he went on it on this occasion. The wagon that was in the alley was across the walk, and blocked passage on the walk at that point, and was his property, or that of his firm. There was ample room to pass around it in the alley, but on account of the rough cobble stones with which the alley was paved he preferred to pass over the grating. In another part of his statement he says he entered on the grating when he came out of the rear door of his own storehouse, and continued to walk on it until he reached the point where the defect was, and where he fell into the basement.

The assignments of error may be grouped, and need not be considered seriatim. It is said the court erred in saying to the jury: "Where the grating is on the public highway, or adjoining, or so near to it that it might be used at any time by any one using the alley, then a person so using it would have the right to presume that it was safe, and to use it in the way that an ordinarily careful prudent person would use it." And again: "If you find that an excavation was made between the house and sidewalk, then it was defendant's duty to see that the space was covered over in such a way as to make it safe for the uses which the public might reasonably be expected to make of that space from its position and the condition it was in." And again: "If the grating was ordinarily safe and suitable for use in such a place, there would be no liability, but, if it were unsafe and dangerous to use such grating, then there would be liability." And again: "Whatever was necessary to be done in order to prevent the grating from getting into such an impaired state as to endanger the public, which impairment arose from the use made of it, and the ordinary wear and tear arising from such use, then such care should have been exercised over it as would have prevented such impairment of the grating. If you find that the defendant permitted the grating in the rear of No. 231 to get into such a state of disrepair as to endanger the public in the use they were permitted to make of such grating, and, as a consequence, plaintiff, without any fault on his part, fell through, and was injured, he has a right to recover." Other assignments are made, which virtually raise the same questions of law, but the above are sufficient to present them fairly, and present the main assignments of error.

The appellant insists that the learned trial judge in his charge assumed that the public had a right to use this grating as a walkway, and that an invitation, expressed or implied, was extended by the owner to so use it, and the jury were misled to believe that, because it was adjoining the walkway and alley, and there was no curb or separating wall, the public was authorized to so use it. It is conceded by appellant that when an owner of contiguous property makes an excavation near a street or alongside it he should use reasonable care to so protect it as that a person passing it may not inadvertently and without negligence fall into it and be injured; but it is contended, on the other hand, that where there is no invitation, express or implied, to pass over private property, or use it as a walkway, there is no such right, and a party who uses it as a passageway does so at his peril. We think it clear that when the owner of land expressly or by implication invites the public or third person to come upon his land, or use it as a passway, he cannot permit a snare or danger to exist thereon which results in injury to the person who accepts the invitation, and who at the time is exercising ordinary care, without being answerable for the injury. So also, if an owner of a building near a street line throws open the intervening space to public use, and by paving it like the sidewalk invites the public to use it as a part of the sidewalk, he is bound to keep it free from dangers. In support of these propositions, counsel for appellee cites as leading cases: Beck v. Carter, 68 N.Y. 292; Lepnick v. Gaddis (Miss.) 16 So. 213; Crogan v. Schiele, 53 Conn. 186, 1 A. 899, and 5 A. 673. These cases support the contention, and are not, as we understand it, questioned by appellant as to their correctness, but only as to their application to this case. The case of Beck v. Carter, is reported in 23 Am. Rep. 175. The court in that case said: "An owner of land is not bound by common law to...