Quinn v. Crimmings
| Decision Date | 20 May 1898 |
| Citation | 171 Mass. 255,50 N.E. 624 |
| Parties | QUINN v. CRIMMINGS. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Fuller & Blood, for plaintiff.
Shepard Stebbins & Storer, for defendant.
This is an action to recover for personal injuries suffered by the plaintiff's intestate, of which he afterwards died. The deceased had gone to a drinking place, had drunk one glass of whisky, and was leaving the place when a fence dividing the premises from the defendant's land fell upon him without warning. The testimony was that the deceased was sober, and was doing nothing to cause the fence to fall. The jury found for the defendant, and the case is here on exceptions to certain rulings and refusals to rule. It is not necessary to set these forth at length, as the questions raised by them and argued may be stated in a few words.
The first question is whether, if, as between the defendant and the owner of the premises where the intestate was, the duty to maintain the fence was on the latter, the defendant nevertheless could be held by the plaintiff; the argument for the plaintiff being that private arrangements with a neighbor could not affect the liability to him of an owner of the land on which presumably, it is said, the division fence stood in part.
It is true that there are cases where an immediately threatening danger is created upon the defendant's land by his order and where the intervening control is not that of an occupant in which the defendant is held to be bound personally to see that proper precautions for safety are taken, although he has given up the control to an independent person, as when he employs an independent contractor. Woodman v. Railroad Co., 149 Mass. 335, 21 N.E. 482. So, a master has somewhat similar duties to a servant in his employ.
But examples of liability to the public being affected by private arrangements are not unknown. A landlord may shift his responsibility for snow falling from the roof of his house into the street by giving control to a tenant, and will have the right to rely upon the tenant managing the premises in such a way as to prevent their becoming a nuisance. The fact that action, and not merely abstinence from illegal acts on the part of the tenant, is required to prevent the harm, is not conclusive. Clifford v. Cotton Mills, 146 Mass. 47-49, 15 N.E. 84. Compare Murphey v. Caralli, 3 Hurl. & C. 462, 465, 466, judgment of Bramwell, B. So when a tenant has covenanted to repair, and an injury is caused by the premises being allowed to fall out of repair. Pretty v. Bickmore, L.R. 8 C.P. 401; Gwinnell v. Eamer, L.R. 10 C.P. 658. On the other hand, the landlord may be liable if he has covenanted to repair. Payne v. Rogers, 2 H.Bl. 350. In these cases all that was contemplated at the time of the lease was the continuance of a situation which, by the forces of nature, might become dangerous if the person intrusted did not do his duty. If the transfer were absolute, every one would recognize that the responsibility was changed with the ownership. The same principle is applied when the occupancy and control are transferred for a certain time, and when there is no present nuisance, but the danger is relatively contingent and remote. The tenant unquestionably owes a duty to the public, and the landlord has a right to assume that he will perform it. The tenant is the wrongdoer nearest to the injury, and the law looks no further back.
The rule which has been applied in the case of landlords and tenants, not without some difference of opinion among the courts of different states, applies with greater force to division fences. The division of the duty of maintaining these is established by statute, and may be insisted on even against an unwilling neighbor. Pub.St. c. 36, §§ 1-19. The law makes the party who is bound to maintain the fence responsible to the public so far as they have any concern in the matter. There is no general delectus personarum as between him and the other possible defendant, his neighbor, and it would be unjust to add the other as jointly liable for the condition of a structure which he did not maintain, and perhaps had no right to touch.
The other question arises with regard to the instructions given and refused concerning the defendant's duty, supposing he was responsible. The only evidence of the defendant's interest or duty was the fact that the fence...
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