Khron v. Brock

• Decision Date: 12 May 1887
• Citation: 144 Mass. 516,11 N.E. 748
• Parties: KHRON v. BROCK.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

144 Mass. 516

11 N.E. 748

KHRON v. BROCK.

Supreme Judicial Court of Massachusetts, Suffolk.

May 12, 1887

COUNSEL

J.W. O'Brien, for defendant.

The negligence which caused the injury to the plaintiff was the negligence of Blevins, the contractor for the roofing, and not the negligence of the defendant. The relation of Blevins and the defendant was that of contractor and contractee, and the defendant would not be liable for the negligent acts of the contractor. Conners v Hennessey, 112 Mass. 96; Hilliard v. Richardson, 3 Gray, 349. The first, second, third, and fourth requests for instructions should therefore have been given. The case at bar is similar to that of Welfare v. London & Brighton Ry. Co., L.R. 4 Q.B. 693, and Hexamer v. Webb, 101 N.Y. 378, 4 N.E. 775. The jury should at least have been allowed to determine whether the injury was caused by the negligence of the contractor or of the owner. See Moynihan v. Whidden, 9 N.E.Rep. 645. Defendant's first four requests for instructions are consistent with the law as settled in cases. Gray v. Boston Gas-Light Co., 114 Mass. 149, at top of page 153; Jager v Adams, 123 Mass. 26.

R.D Smith and J.H. Sherburne, for plaintiff.

The court gave full instructions touching the questions (1) "whether the plaintiff's injury was caused by the unsafe and improper condition of the defendant's building;" and (2) "whether, at the time, the plaintiff was lawfully on the street or sidewalk, in the exercise of due care." The evidence, which was conflicting upon these questions, is not reported. The defendant's requests, except the fifth, are based upon his views of that evidence. The court was not bound to adopt the language of these requests, (Thurston v. Perry, 130 Mass. 240; Howes v. Grush, 131 Mass. 207; Randall v. Chase, 133 Mass. 210,) and therefore they are disposed of by the "full instructions given touching those questions," in connection with those given upon the fifth request, which were, first, that an owner is not liable for an accident caused by the wrongful interference of a third person, (founded on Gray v. Boston Gas-Light Co., 114 Mass. 152, and Gorham v. Gross, 125 Mass. 232, and cases cited;) second, that the owner is not liable for an inevitable accident, i.e., one produced by such a cause as a superior and unanticipated natural force, like lightning or a tornado; but an owner is liable for accidents produced by the unsafe condition of his house, in connection with the action of winds or storms ordinarily incident to our climate. The first instruction involves the proposition that the owner of a house which is in an unsafe condition is responsible only in case he is personally active in rendering it unsafe, or personally negligent and careless in leaving it in an unsafe condition. This is not the doctrine of the law in regard to the obligation of the owners of houses. They are bound, at their peril, to keep the stack of chimneys, or other things collected upon the building, from falling into the street below. Gray v. Boston Gas-Light Co., 114 Mass. 153; Nichols v. Marsland, L.R. 10 Exch. 255, 2 Exch.Div. 1; Fletcher v. Rylands, L.R. 1 Exch. 265, 279, L.R. 3 H.L. 330, 339, 340. The second instruction requested implies that an owner, by employing a contractor to build or repair his house, may escape liability for an injury resulting from the imperfect condition thereof, caused by negligence of the contractor, although the contractor had ceased to work, or had completed his contract. This is based upon a misunderstanding of such cases as Hilliard v. Richardson, 3 Gray, 349. It implies that, if he employs a contractor, he may escape liability, although he is aware of the contractor's carelessness. This criticism is applicable also to the third and fourth instructions requested. If the contractor had completed his job, and it had been accepted, it would scarcely be contended that the house-owner would not be responsible for the imperfect construction or dangerous condition thereof. Gorham v. Gross, 125 Mass. 232; Currier v. Boston Music Hall Ass'n, 135 Mass. 414; Sturges v. Theological Soc., 130 Mass. 414. It is not possible that a house-owner is not liable for a defect, if the contractor has refused to complete his contract, and has left the building in a dangerous condition. It is a rule of public policy to protect those who use the highways and adjoining premises. Shipley v. Fifty Associates, 106 Mass. 194, 199. The house-owner being bound to keep his building safe, so that no part of it will fall, cannot escape that duty by making a contract with one to build or repair. He is bound to keep it in safe condition while repairing, and this duty cannot be escaped, even while the work of repair is going on. It is the householder's duty, and such is really the decision in Gorham v. Gross, 125 Mass. 232. A different rule may prevail when the whole premises are given up to the control of a contractor, as in Conners v. Hennessey, 112 Mass. 98; but we submit that this case should have been decided the other way. See Mulchey v. Methodist Soc., 125 Mass. 489. This question seems to be governed by the principles settled in Fletcher v. Rylands, L.R. 1 Exch. 265, and affirmed in L.R. 3 H.L. 330, and in Gorham v. Gross, 125 Mass. 232; Mulchey v. Methodist Soc., 125 Mass. 487; Gray v. Boston Gas-Light Co., 114 Mass. 149; Shipley v. Fifty Associates, 106 Mass. 194; Heaven v. Pender, 11 Q.B.Div. 503; Kearney v. London, B. & S.C.R. Co., L.R. 6 Q.B. 759.

OPINION

DEVENS J.

The first ruling requested was that the defendant was not liable...