Lee v. McLaughlin

• Citation: 30 A. 65,86 Me. 410
• Parties: LEE v. MCLAUGHLIN.
• Decision Date: 14 May 1894
• Court: Maine Supreme Court

30 A. 65

86 Me. 410

LEE

v. MCLAUGHLIN.

Supreme Judicial Court of Maine.

May 14, 1894.

(Official.)

Report from supreme judicial court Penobscot county.

Action by John L. Lee against Henry McLaughlin for personal injuries caused by defendant's negligence. Heard on report. Judgment for defendant.

h. L. Mitchell, for plaintiff.

Wilson & Woodard, for defendant.

FOSTER, J. The defendant was the owner of a brick store, with a slated roof, situated on the westerly side of Broad street and easterly side of Pickering square, in Bangor.

It appears from the evidence and admitted facts that for several years prior to, and at the time of, the accident, "the whole store, the real estate and building, were in the occupation of Thurston & Kingsbury, under a tenancy at will from the defendant."

A quantity of snow which had fallen upon the roof of the building slid off into the street and upon the sidewalk, thereby causing a horse which was attached to a truck wagon, and belonging to one John C. Mooney, to start and run away; and in its course it came into collision with the horse and sleigh of the plaintiff, who was thrown from the sleigh and received the injuries for which he seeks to recover compensation of the defendant in this suit

Of the several positions taken in defense of this action, it becomes necessary to consider only one, and that which we think is decisive of this case.

The plaintiff can hold the defendant liable only upon the ground that he was guilty of negligence towards him. Upon no other theory can such an action as this be maintained. The plaintiff seeks to recover of the defendant as owner of the building upon which the snow accumulated, producing the injuries of which the plaintiff complains.

Whatever may be the rights of travelers receiving injuries from the fall of snow or ice from a roof which is subject to the use and control of the owner, as in Shipley v. Fifty Associates, 101 Mass. 251, 106 Mass. 194, and other cases of that nature, it can no longer be regarded as an open question whether or not the owner of a building is liable in such a case as this, when the entire control and occupation belong to the tenants. That question must be regarded as fully settled by the cases of Kirby v. Association, 14 Gray, 249; Leonard v. Storer, 115 Mass. 86; Clifford v. Cotton Mills, 146 Mass. 47, 15 N. E. 84; Lowell v. Spaulding, 4 Cush. 277.

The principle enunciated by these decisions is that the occupier, and not the landlord, is bound, as between himself and the public, to keep buildings and other structures abutting upon highways and streets in repair so that they may be safe for the use of travelers passing along the same, and that the occupier is prima facie liable to persons injured through any defect in the same or want of care in the use of such buildings.

The case of Clifford v. Cotton Mills, supra, was an action for personal injuries occasioned to the plaintiff by the fall of snow from the defendant's house into the highway. The house was three stories high, with a steep slate roof slanting towards the sidewalk, with no protection or railing to keep the snow from falling upon the sidewalk. The court held that the owner of a building with a steep and unguarded roof, who lets it to a tenant reserving only the right to enter the premises to repair the same, is not liable to a person injured by a fall of snow from the roof while traveling with due care upon the adjoining highway; it not appearing that the tenant might not, by the use of reasonable care, have prevented the accident. In the course of the opinion the court say: "The defendant's house was not a nuisance in itself. If it was, half the householders in Boston are indictable at the present moment it was certain to become so at times by the mere working of nature alone, unless the tenant cleared the roof, or took other steps to prevent it But, so far as appears, the tenant could have done so by using reasonable care. If he could, it was his duty to do so, and the landlord was not liable, for the reasons which we have stated."

Very...