Kitchen v. Carter

• Decision Date: 07 April 1896
• Docket Number: 5935
• Citation: 66 N.W. 855,47 Neb. 776
• Parties: JAMES B. KITCHEN v. DELIA CARTER, ADMINISTRATRIX
• Court: Nebraska Supreme Court

66 N.W. 855

47 Neb. 776

JAMES B. KITCHEN v. DELIA CARTER, ADMINISTRATRIX

No. 5935

Supreme Court of Nebraska

April 7, 1896

ERROR from the district court of Douglas county. Tried below before DOANE, J.

REVERSED AND REMANDED.

George E. Pritchett and J. C. Cowin, for plaintiff in error.

References Lewis v. Flint & P. M. R. Co., 19 N.W. 744 [Mich.]; Jucker v. Chicago & N. W. R. Co., 52 Wis. 150; Pennsylvania Co. v. Hensil, 70 Ind. 569; Larson v. St. Paul & D. R. Co., 45 N.W. 1096 [Minn.]; Whitman v. Wisconsin & M. R. Co., 17 N.W. 124 [Wis.]; Pease v. Chicago & N. W. R. Co., 20 N.W. 908 [Wis.]; Fowler v. Chicago & N. W. R. Co., 21 N.W. 40 [Wis.]; Bernso v. Gaston Gas Coal Co., 27 W.Va. 285; Childrey v. City of Huntington, 12 S.E. [W. Va.] 536; Marvin v. Chicago, M. & St. P. R. Co., 47 N.W 1123 [Wis.]; St. Louis, A. & T. R. Co. v. Neel, 19 S.W. 963; St. Louis I. M. & S. R. Co. v. Commercial Ins Co., 139 U.S. 223; Ewing v. Pittsburgh C. C. & St. L. R. Co., 23 A. 340 [Pa.]; Herr v. City of Lebanon, 24 A. 207 [Pa.]; Shaaber v. City of Reading, 24 A. 692 [Pa.]; Deming v. Merchants Cotton-Press & Storage Co., 17 S.W. 89 [Tenn.]; Lynch v. Northern P. R. Co., 54 N.W. 611 [Wis.]; Nelson v. Chicago, M. & St. P. R. Co., 14 N.W. 360 [Minn.]; Anderson v. Chicago, B. & Q. R. Co., 35 Neb. 101; McGowan v. St. Louis Ore & Steel Co., 19 S.W. 200 [Mo.]; Keightlinger v. Egan, 65 Ill. 236; Beehler v. Daniels, 29 A. [R. I.] 6; Purcell v. English, 86 Ind. 34; McAlpin v. Powell, 70 N.Y. 126; Pittsburgh, F. W. & C. R. Co. v. Bingham, 29 Ohio St. 364; Sweeny v. Old Colony & N. R. Co., 10 Allen [Mass.] 372; Larmore v. Crown Point Iron Co., 101 N.Y. 391; Severy v. Nickerson, 120 Mass. 306; Omaha & R. V. R. Co. v. Martin, 14 Neb. 298; Gibson v. Leonard, 37 Ill.App. 344; Woodruff v. Bowen, 34 N.E. 1113 [Ind.].

Connell & Ives, contra.

References: Hayes v. Michigan C. R. Co., 111 U.S. 228; Mutual Ins. Co. v. Tweed, 7 Wall. [U.S.] 44; Baltimore & P. R. Co. v. Reaney, 42 Md. 117; Grimes v. Louisville, N. A. & C. R. Co., 30 N. E. Rep., [Ind.] 200; Davis v. Garrett, 6 Bing. [Eng.] 716; Campbell v. City of Stillwater, 32 Minn. 308; Boss v. Northern P. R. Co., 49 N.W. [N. Dak.] 655; Couts v. Neer, 9 S.W. [Tex.] 40; Village of Carterville v. Cook, 22 N.E. 14 [Ill.]; Denver, T. & G. R. Co. v. Robbins, 30 P. 263 [Colo.]; Houghkirk v. Delaware & Hudson Canal Co., 92 N.Y. 219; Lockwood v. New York, L. E. & W. R. Co., 98 N.Y. 526; Cooley, Torts [2d ed.] p. 367, and cases cited; Gilbert v. Nagle, 118 Mass. 278; Welch v. McAllister, 15 Mo. App., 492; Indermaur v. Dames, 1 C. P. [Eng.] 274; Carleton v. Franconia Iron & Steel Co., 99 Mass. 216; Nickerson v. Tirrell, 127 Mass. 236; Low v. Grand Trunk R. Co., 72 Me. 313; Smith v. Lambeth Assessment Committee, 10 L. R., Q. B. [Eng.] 327; Toomey v. Sanborn, 146 Mass. 28; Bennett v. Louisville & N. R. Co., 102 U.S. 577; Learoyd v. Godfrey, 138 Mass. 315; Gorham v. Gross, 125 Mass. 232; Hannem v. Pence, 40 Minn. 127; Shipley v. Fifty Associates, 106 Mass. 194; Khron v. Brock, 11 N.E. 748 [Mass.]; Simmons v. Everson, 26 N.E. [N.Y.] 911; Wilkinson v. Detroit Steel & Spring Works, 41 N.W. 490 [Mich.]; Bensen v. Suarez, 28 How. Pr. [N.Y.] 512; City of Anderson v. East, 19 N.E. 726 [Ind.]; Hydraulic Works Co. v. Orr, 83 Pa. 332; Schilling v. Abernethy, 112 Pa. 437; Gramlich v. Wurst, 86 Pa. 80; Gillespie v. McGowan, 100 Pa. 149; Lynds v. Clark, 14 Mo. App., 74; Glidden v. Moore, 14 Neb. 84.

OPINION

HARRISON, J.

The plaintiff in error, during the year 1886 and prior and subsequent thereto, was a part owner and had control of the premises known as the "Paxton Hotel property" in the city of Omaha. In 1886 the southwest portion of the building was what was called an "annex" to the main body of the building and this annex was fifty feet long, twenty-two feet wide, and two stories high. During the year stated the plaintiff caused an additional or third story to be built upon the annex. For this third story there were no plans and specifications made and no architect was employed to superintend its construction. A pencil sketch of the desired improvement was made and given by plaintiff in error to an experienced contractor and builder with directions to furnish the material and perform the labor, or have the necessary labor performed, the payment to be the reasonable value of the labor and material, or such sum as could be agreed upon between the parties. During the early part of the night of April 12, 1891, fire was discovered in the southwestern lower room of the annex, then being used as a kitchen. A fire-alarm was turned in and was promptly responded to by some of the organizations or companies belonging to the fire department, the members of which, as soon as they reached the premises, took active measures for stopping the fire. Some of them discovering, as they believed, evidences of fire in the upper northwest corner or room in the third story of the annex, a ladder was raised from a vacant portion of an adjoining lot and placed so that the upper end reached or rested against the window sill of the room; and some of the firemen,--among them Michael J. Carter,--started up the ladder with a line of hose. They had proceeded but a short distance when a portion of the brick wall, against and by which the ladder was supported, fell outward and struck and injured the firemen who were upon the ladder. From the effect of injuries so received, Michael J. Carter soon afterward died, and this suit was instituted by Delia Carter, his wife and the administratrix of his estate, to recover damages under the provisions of our statute for the pecuniary loss resulting from his death. The right to recover in the action was predicated upon the alleged negligence of plaintiff in error in procuring or allowing the use of poor, inferior material in the building of the third story of the annex and its faulty and defective construction in certain particulars specifically designated in the petition. These statements all and singular of the petition in relation to negligence imputed to plaintiff in error and defects of any nature in the construction of the additional story to the annex, were denied in the answer. The result of a trial in the district court was a verdict and judgment in favor of defendant in error in the sum of $ 5,000, and to secure a review of the proceedings in that court the case has been removed to this court by petition in error.

Counsel for plaintiff in error, in a reply brief, state, or assume it to be proven, that the deceased fireman was in or on the premises or building of plaintiff in error and was there a mere licensee, and hence the plaintiff in error owed him no duty, and even conceding that negligence had been shown, yet no liability accrued. That a licensee, in entering upon property, assumes the risks of injury resulting to him from any defective, imperfect, or dangerous conditions of the premises, but this we need not discuss or decide as we do not think the question is raised by either the pleadings in the case or the facts. It was alleged in the petition that the fireman, when injured, was on a vacant lot adjoining the Paxton Hotel property, and the evidence discloses that he, with other firemen, went on the vacant lot first referred to, and reared a ladder against the hotel building, or more properly speaking, the annex, and was in the act of ascending it to go upon or into the building, when the brick wall fell on them and they were not in or on the premises of plaintiff in error. It was alleged in the petition that a part of the wall of the building,--the third story of the annex,--for no sufficient cause except its own defects and inherent weakness, fell westward and outward and injured the firemen. The theory of this portion of the cause of action was based upon the proposition that in erecting the building, the third story, if it was so defectively constructed, to the knowledge of the proprietor, as to be dangerous, and because of weakness it fell and injured anyone lawfully in its vicinity, or, as in this case, on the adjoining lot, the owner of the building was liable for any damage so suffered. Carter, the fireman, was lawfully on the adjoining lot. He had a right to go and be there for the purpose of fighting fire in this or any other of the buildings in that portion of the city. With regard to insecure buildings and liability attaching to the owners thereof it is said in Wood, Nuisances, p. 140, sec. 109, "While a man has a right to follow his own tastes and inclinations as to the style and character of the building that he will erect upon his own land, yet he has no right to erect and maintain there a building that is dangerous, by reason of the materials used in, or the manner of its construction, or that is inherently weak or in a ruinous condition and liable to fall and do injury to an adjoining owner or the public. Such a building on a public street is a public nuisance, and is a private nuisance to those owning property adjoining it; and if the building falls and inflicts injury upon the adjoining owners or their property, or to any one who is lawfully in its vicinity, the owner is liable for all the consequences that ensue therefrom." (See authorities cited in support of the text.) "The owner of a building is not an insurer against accident from its condition, but so far as the exercise of ordinary care will enable him to do so he is bound to keep it in such condition that it will not, by any insecurity or insufficiency for the purpose to which it is put, injure any person rightfully in, around, or passing it." (Ryder v. Kinsey, 62 Minn. 85, 64 N.W. 94.)

But it is urged by counsel for plaintiff in error that the evidence is insufficient to support a finding of defective construction of the third story of this...