Fitzmaurice v. Fabian

• Decision Date: 25 January 1892
• Docket Number: 316
• Parties: Fitzmaurice v. Fabian, Appellant
• Court: Pennsylvania Supreme Court

23 A. 444

147 Pa. 199

Fitzmaurice v. Fabian, Appellant

No. 316

Supreme Court of Pennsylvania

January 25, 1892

Argued January Term, 1892.

Appeal No. 316, Jan. T., 1891, by defendant, from judgment of C.P No. 2 of Philadelphia Co., Dec. T., 1886, No. 497, on verdict for plaintiff.

Case by Kate Fitzmaurice, a minor, by her next friend, Johanna Fitzmaurice, against James Fabian to recover damages for personal injuries. Plea, not guilty.

At the trial before PENNYPACKER, J., the facts appeared as stated in the opinion of the Supreme Court. The court charged in part as follows:

"This action, as you have learned, is a suit brought to recover damages for what is alleged to be negligence. It appears that defendant had a contract with the owner of this property to clean out a privy well. This work was done by him on July 1 1885. On August 12, 1886, the plaintiff here, a little girl of about seven or eight years of age, who had been in the water-closet, was coming out of the door, and as she shut the door a board with a nail in it fell from the roof and struck her, and thus injured her.

The testimony of the mother of the little girl is that before the defendant's workmen did their work upon this place the roof was closed, and the boards were on it, and that after they went away they were thrown loosely upon the roof, where they had been nailed before. The father of the plaintiff says that he examined the roof, and saw it the day before, and that it was a good roof, pretty tight, and that he saw it on the day following, and that the boards were thrown loosely there, some of them on that part of the roof which had not been interfered with, and some upon that place where the boards had been.

Where a man has a contract with the owner of real estate to do some work in connection with a building, and bas control over the means by which the work is to be done without direction on the part of the owner as to those means, it is his duty to use proper and reasonable care to see that it is done in such a way as not to be injurious and dangerous to third persons. The want of such care is negligence.

[If you find that there was negligence in this case, and that that negligence resulted in the injury caused the plaintiff, she ought to recover, and it would be your duty to find a verdict in her behalf. It is incumbent upon the plaintiff to prove to your satisfaction both the negligence aud the fact that the negligence was the cause of this accident. If the boards fell because they had gradually rotted away from lapse of time the inclemency of the weather, or for any other reason, it would be your duty to find a verdict for the defendant.] .

I have been asked to charge you on behalf of the defendant:

"1. The undisputed evidence shows that the defendant's alleged negligence was not the proximate cause of the injury, and therefore the verdict must be for the defendant." A. "I decline that point." [1]

"3. If the plaintiff's parents, who were also tenants and occupants of the premises, had knowledge of the dangerous position in which it is alleged the defendant's servants placed the boards upon the roof of the privy, it was their duty to remove or secure the boards, and their failure to do so for upwards of a year after the alleged acts of the defendant's servants, was the proximate cause of the injury to the plaintiff." A. "I decline that point." [2]

"4. If the owners of the premises, or their agent, had knowledge of the dangerous position in which it is alleged the defendant's servants placed the boards on the roof of the privy, it was their duty to remove or secure the boards, and if they failed to do so for a long time, then their failure was the proximate cause of the injury to the plaintiff." A. "I decline that point." [3]

"7. Under all the evidence in the case the verdict of the jury must be for the defendant." A. "I decline that point." [4]

Verdict and judgment for plaintiff for $1,460. Defendant appealed.

Errors assigned were (1-4) answers to defendant's points, quoting points and answers; (5) the portion of the charge in brackets, quoting it.

The judgment is reversed.

Preston K. Erdman and John G. Johnson, for appellant. -- The present case is ruled by Curtin v. Somerset, 140 Pa. 70. The injuries were not the proximate consequences of the act complained of: R.R. Co. v. Keighron, 74 Pa. 316; Cuff v. R.R. Co., 35 N.J. 17; Insurance Co. v. Tweed, 7 Wall. 52; R.R. Co. v. Kellogg, 94 U.S. 469; Chartiers Twp. v. Philips, 122 Pa. 611; Carter v. Towne, 103 Mass. 507; Wharton on Negligence, sec. 134. The owner of the building must have known of the dangerous character of building. He was therefore liable: Gas Co. v. Lynch, 118 Pa. 362; Walden v. Finch, 70 Pa. 460; Belerick v. Bank, 25 W.N.C. 272; Mansfield Co. v. McEnery, 91 Pa. 185. The parents were guilty of negligence in leaving the board in a dangerous position.

A. S. L. Shields, for appellee, cited Lynch v. Wurden, 1 Q.B. 29; Schilling v. Abernethy, 112 Pa. 437; Heaven v. Pender, 11 Q.B.D. 503; Hogsett's Ap., 27 W.N.C. 319; Shearman & Redfield on Negligence, pp. 10, 41, 679; Thomas v. Hook, 4 Phila. 119.

Before PAXSON, C.J., STERRETT, GREEN, WI...