Hannem v. Pence
| Decision Date | 30 January 1889 |
| Citation | 40 Minn. 127 |
| Court | Minnesota Supreme Court |
| Parties | BERNT HANNEM <I>vs.</I> JOHN W. PENCE. |
Charles P. Barker, for appellant.
James O. Pierce and Arctander & Arctander, for respondent.
By numerous assignments of error and an elaborate brief counsel for defendant have made the most of a poor case, but an examination of the record satisfies us that there is really nothing in this appeal. The action was one for damages for personal injuries caused by ice and snow from the roof of defendant's building falling on plaintiff while travelling on the sidewalk. Although the complaint contains some other allegations on the matter of negligence, yet the gist of the negligence alleged and proved was the erection and maintenance of a building with a roof so unsafely and improperly constructed and shaped that snow and ice, collecting on it, would inevitably, and in the natural course of things, be liable to slide down and fall upon the sidewalk below, to the great danger of foot-passengers.
Before considering the main questions in the case, it is necessary to refer to some rules of practice and pleading, as to which counsel seem to have fallen into error. And, first, a general denial, like any other, is always qualified or limited by any admission or inconsistent allegation in the pleading. Second. Although a motion by defendant to dismiss, when plaintiff rests, on the ground of failure of proof, be erroneously denied, yet if the necessary proof is afterwards supplied, although by defendant, the error is cured; and, for the purpose of determining whether a verdict for plaintiff is sustained by the evidence, the court will consider the whole evidence in the case, whenever and by whomsoever introduced. Third. The order of proof is largely a matter of discretion with the trial court, and hence evidence which is properly a part of plaintiff's case in chief may be permitted to be introduced out of its regular order, or even by examination of defendant's witnesses, although not strictly cross-examination: provided, only, the evidence is competent and material, and the defendant is not surprised or otherwise unfairly prejudiced by the departure from the regular order of proof. We state this with reference to the evidence elicited on cross-examination of defendant's witness, the janitor in charge of the building, that he was employed by the defendant. Fourth. The allegation of the complaint that at the time of the injury the defendant was in the possession of the premises, and had control of its roof, was not put in issue by defendant. His answer admits that he erected the building, and was the owner of it, which implies that he has the possession and control, in the absence of any affirmative allegation that he has parted with it. Moreover, in connection with this admission, he alleges that he at all times kept the roof as clean and free from snow and ice as practicable and possible, which amounts, by necessary implication, to an admission that he had the control of it. And, even if this fact had been in issue, it was sufficiently established by the evidence of the janitor in charge, already referred to. But, beyond and above all this, the question whether the actual possession of the building was in defendant or in his tenants was wholly immaterial. As already remarked, the gist of the negligence charged was the erection and maintenance of a roof of improper and unsafe shape. So far as damages from this cause alone were concerned, he would, in any event, be liable, and he could not evade it by turning over possession of the building to his tenants. Cahill v. Eastman, 18 Minn. 292, (324;) Shipley v. Fifty Associates, 101 Mass. 251, 106 Mass. 194.
But coming, now, to the main question in the case, the evidence conclusively and without conflict establishes the following facts: The building in question, Pence Opera House, fronts on Hennepin avenue, one of the main public thoroughfares in the city of Minneapolis. The front wall, as is usual in business blocks, comes out flush with the line of the street. The building is 60 feet front on Hennepin avenue, and 200 feet deep on Second street. The roof is what is called a "hipped" or "peaked" roof, running up from all four sides of the building to a peak or ridge in the centre, which is from 15 to 18 feet higher than the outer or lower edge of the roof. The slope or pitch is quite steep, being a little less than "a one-third pitch;" that is, about one inch in three. This slope is, of course, downwards towards the street, and extends to near the edge of the outer wall of the building, and from thence there projects a horizontal cornice, extending beyond the building, over the sidewalk, some two or three feet. In this cornice is a gutter, almost immediately above the outer edge of the wall of the building, about five inches deep and a foot wide. In the natural order of things, by reason of alternate thawing and freezing in the winter-time, this gutter becomes filled with ice; and when snow or ice has accumulated on the roof, and a thaw ensues, according to the...
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