Hugh Murray v. William F. Nelson

• Decision Date: 03 October 1923
• Citation: 122 A. 519,97 Vt. 101
• Parties: HUGH MURRAY v. WILLIAM F. NELSON
• Court: Vermont Supreme Court

122 A. 519

97 Vt. 101

HUGH MURRAY v. WILLIAM F. NELSON

Supreme Court of Vermont

October 3, 1923

May Term, 1923.

ACTION OF TORT to recover damages for personal injuries sustained by slipping on an icy sidewalk. Plea, the general issue. Trial by jury at the September Term, 1922, Rutland County, Butler J., presiding. Verdict and judgment for the plaintiff. The defendant excepted. The opinion states the case.

Judgment affirmed.

Charles L. Howe, Walter S. Fenton, and William E. Dever for the defendant.

Present WATSON, C. J., POWERS, TAYLOR, and SLACK, JJ.

OPINION

POWERS

This is an action to recover damages for personal injuries. It was brought against William F. Nelson and Joseph Segale, but was discontinued against the latter as will hereinafter appear. It was tried below by jury, and verdict was for the plaintiff. The defendant brings it here on exceptions.

The defendant owns a wooden building fronting on Merchants' Row, the principal business street in the city of Rutland. There are two stores on the ground floor, divided at the front by a hallway opening directly on the street and containing stairs leading to the second floor. In the northerly store there was a restaurant and in the southerly store, a fruit market conducted by Segale, who also leased the basement thereunder. The second and third floors, except the front room next to the stairway and over the Segale store were occupied by various tenants, who used the hallway and stairs as a common entrance. The room over Segale's store was vacant, and was in the possession and control of the defendant. The defendant is a nonresident and the building is in full charge of F. J. Brown, as agent under a power of attorney to lease, repair, and collect the rents. In the northeast corner of the vacant room above referred to is a lavatory supplied with water through a pipe connecting with the city main. A pipe comes through into the Segale basement turns upward to a point just under the ground floor, from which point are two branches: One goes into the stairway and extends upward therein to the second floor, where it passes through the partition to the lavatory referred to; the other branch supplies a sillcock in the front of the Segale store, which was used to wash the store windows. There was a shut-off on the main pipe that would shut the water from both these branches, and another on the sill-cock branch, but none on the branch to the lavatory. So when Segale had occasion to use the sillcock, the water was necessarily let into the lavatory pipe. Both the hall and the vacant room were unheated, and the pipes therein were wholly unprotected from the cold. Prior to the time here in question Brown had arranged with Segale to look after shutting off the water as necessity required. In the early morning of December 28, 1921, the pipe to the lavatory burst, and water in large quantities ran down the stairway, out the door and across the sidewalk. It was a very cold night, and this water froze into glare ice on the sidewalk, creating a condition endangering the safety of one passing that way. Two days later, the plaintiff, while walking along on the sidewalk, slipped on this ice and suffered the injuries here sued for.

All this was within the tendency of the evidence. There was also evidence tending to show that one Taylor, a tenant of the third floor of the building attempted to stop the flow of water in the vacant room by bending the pipe so it would dis-discharge out the window; that in this attempt he broke off the pipe, and then went out into the hall and cut the pipe with an axe. The result was that the water all poured down the stairs and out the door for a short time, though it was entirely shut off directly after he cut the pipe.

The defendants severed in defense, and at the close of the evidence, each moved for a verdict. The court announced that the motion in behalf of Segale would be sustained, unless the plaintiff elected to discontinue as to him. Thereupon, the plaintiff did discontinue against Segale, and entry was directed accordingly. The motion in behalf of Nelson was then overruled, and he excepted.

Assuming that this exception is sufficient to cover the action of the court with reference to Segale's motion, it is without merit.

If the defendants were legally responsible for the damages here claimed, their liability was joint and several; the plaintiff could sue one or both; the choice was his, neither defendant could complain of the result of its exercise. Drown v. New England Telephone Company, 80 Vt. 1, 66 A. 801. So, too, if he elects to sue both, he can, at any state of the case, by leave of the court, at least, discontinue as to either. Davenport v. Newton, 71 Vt. 11, 42 A. 1087. The action of the plaintiff was none the less voluntary in a legal sense, though it resulted from the announcement of the court. Even if he was required to elect, his choice between the alternatives presented was voluntary. 18 C. J. 1149. Nor was Nelson harmed. If liable at all, he was liable for all the damages recoverable. That liability was neither enlarged nor reduced by the discontinuance. He was left just where he would have been, if the plaintiff had allowed the court to order a verdict for Segale.

It is the duty of an abutter to keep his property from becoming a source of danger to the traveling public by reason of any defect either in construction, use, or repair, so far as the exercise of the care of a prudent man can guard against the same. If he artificially collects upon his own premises a substance which from its nature, is liable to escape and do damage to others, he must use due care to restrain it, and is liable for damages resulting from his failure to do so. If he wilfully or negligently creates a dangerous condition in the public highway, he is liable in damages to a traveler therein, who, without his own fault, is injured thereby. This defendant was well within his legal rights when he installed and maintained on his premises pipes and equipment for supplying water to himself and his tenants; but, in the circumstances shown, he was bound to use the care of a prudent man, both in the manner of the installation and the subsequent maintenance, to see to it that the safety of the street was not impaired thereby. He was bound to take notice of the severity of a Vermont winter and the liability of the pipes to freeze and burst; he was bound to know that if they did, the water would be likely to flow down the stairs and out the door on to the sidewalk, and there freeze and imperil the safety of persons rightfully using the street. Nor did the arrangement with Segale as to his operating the shut-off affect his situation. He could entrust this work to Segale if he chose, but it would not relieve him of responsibility. Having by his own fault created a dangerous condition in the street, it was the defendant's continuing duty to safeguard pedestrians using the sidewalk by reasonable precautions until the dangerous condition was eliminated. Merely sanding the ice, for instance, would not necessarily discharge this duty. If sliding boys swept off the sand, the defendant should have renewed it, and kept it sanded as long as the danger he created continued, or as long as a careful man would have done so. Thus far, the case in principle is no different from what it would have been if the de- fendant had gathered surface water into an artificial channel and turned it across the sidewalk, as in Hynes v. Brewer, 194 Mass. 435, 80 N.E. 503, 9 L. R. A. (N. S.) 598; or had maintained a drain so that the wash water...