Joyce v. Martin

• Decision Date: 16 July 1887
• Citation: 15 R.I. 558,10 A. 620
• Parties: JOYCE v. MARTIN and another.
• Court: Rhode Island Supreme Court

10 A. 620

15 R.I. 558

JOYCE

v. MARTIN and another.

Supreme Court of Rhode Island.

July 16, 1887.

Trespass on the case. On demurrer to the second count of the declaration.

Augustus S. Miller and Arthur L. Brown, for plaintiff. Nicholas Van Slyck and Cyrus M. Van Slyck, for defendants.

DURFEE, C. J. We think the second count of the plaintiff's declaration sets forth a good cause of action, and that the demurrer to it must be overruled. Briefly stated, the case set forth is this: On February 15, 1881, the defendant Martin was, and for a long time had been, the owner of an estate in East Providence, bounding on Providence river, known as "Silver Spring," being a place of public resort and entertainment, to which the public had long been in the habit of resorting, and of a wharf extending therefrom into said river, over which the people were in the habit of coming and going in great numbers, to and from said Silver Spring, and at which many steam-boats were accustomed to touch. This wharf was, at the time mentioned, and long had been, unfit for such use, in this: that there was a large opening in the top of it, which was accustomed to close when the steam-boats touched, to the great danger of persons standing there, the wharf being without proper protection against the resulting shock. On February 17, 1881, Martin, knowing this, leased "Silver Spring" and wharf to the defendant Bliss, who was then ignorant of it, for the term of eight years, at $1,500 per annum. "Silver Spring," being let to be used as a place of public entertainment and resort, and said wharf as a suitable landing place and place of egress for the numerous visitors thereto, Bliss soon became acquainted with the condition of the wharf, but left it unrepaired until after July 31, 1886, while he continued to invite the public to his resort; both he and Martin meanwhile deriving great gains and profits therefrom. On July 31, 1886, the plaintiff's son Henry D. Joyce, a boy of 11 years, was on the wharf, a visitor at the invitation of Bliss, and, while in the exercise of due care, got his foot caught in the opening, and crushed by the closing thereof when a steam-boat touched the wharf. The plaintiff sues for damages for loss of the boy's services, etc.

In Owings v. Jones, 9 Md. 108, the plaintiff sued for damages for injuries received by falling into a vault appurtenant to the property of the defendant, and built under the sidewalk of a public street. It was shown in defense that the property had been leased by the defendant for the term of seven years, the lessee agreeing to pay an annual rent therefor, but not in any manner stipulating to keep the demised premises in repair, nor to have the sink kept clean, and that the lessee was in possession at the time of the accident. But the court held that the defendant was not relieved from liability if the vault was so constructed as to be unsafe for passers-by when the premises were let, or as liable to become unsafe in the necessary opening for the purpose of cleaning it. The court, in giving its opinion, laid down the following doctrines, relying on the authority of Rich v. Basterfield, 4 C. B. 784, and the cases cited there, to-wit: First, when property is demised, and at the time of the demise is not a nuisance, and becomes so only by act of the tenant while in his possession, and injury happens during such possession, the owner is not liable; second, but where the owner leases premises which are a nuisance, or must in the nature of things become so by their use, and receives rent, then, whether in or out of possession, he is liable for injuries resulting from such nuisance. Numerous cases support this view. Rosewell v. Prior, 2 Salk. 460, also 12 Mod. 635, 639; The King v. Pedly, 1 Adol. & E. 822; The King v. Moore, 3 Barn. & Adol. 184; Todd v. Flight, 9 C. B. (N. S.) 377; Nelson v. Brewing Co., 2 C. P. Div. 311; Pretty v. Bickmore, L. K. 8 C. P. 401.

In the last-named case the lessor was held to be exempt from liability because he let the premises by lease in which the tenant covenanted to keep them in repair. See, also, the following American cases: Staple v. Spring, 10 Mass. 72; Fish v. Bodge, 4 Denio, 311; Davenport v. Ruckman, 37 N. Y. 568; Anderson v. Dickie, 26 How. Pr. 105; House v. Metealf, 27 Conn. 631.

In Godley v. Haggerty, 20 Pa. St. 387, affirmed in Carson v. Godley, 26 Pa. St. 111, it was held that where the owner of real estate erected thereon a row of buildings, with the intention of renting them to the government as bonded warehouses, and with the knowledge that they would be obliged as such to sustain very great weight, he was liable in damages for an injury to a person employed in one of the stores, occasioned by its fall, after having been so rented, though the immediate cause of the accident was the storage of heavy merchandise in an upper story, it appearing that the building had been constructed on a defective plan, and of insufficient strength.

In Swords v. Edgar, 59 N. Y. 28, it was held that the lessors of a pier, which was in possession of their lessee from whom they were receiving rent for it, were liable for an injury received by a longshoreman engaged in discharging a cargo thereon, the cause of the injury being a dangerous defect which existed at the date of the demise. The pier, though private property, was kept for use by all vessels which might come to it for the purpose of loading and unloading; and the court held that the longshoreman, being in the employ of such a vessel, was to be regarded as there by invitation, and therefore as entitled to the protection which would result from having the pier in an ordinary state of security and strength. The court also held that though the lease contained a covenant binding the lessee to keep the pier in good order and repair, the lessors were not exonerated thereby; dissenting from Pretty v. Bickmore, supra.

In Edwards v. Railroad-Co., 98 N. Y. 245, the plaintiff was injured by the falling of a gallery in a building, let to be used for public exhibitions, and it was held that the lessors were not liable, there being no evidence that they either knew or had reason to know that the gallery would be used in such a way as to endanger its security. The court, however, in delivering judgment, said: "If one...