Railton v. Taylor

• Decision Date: 22 November 1897
• Citation: 38 A. 980,20 R.I. 279
• Parties: RAILTON v. TAYLOR et al.
• Court: Rhode Island Supreme Court

38 A. 980

20 R.I. 279

RAILTON

v. TAYLOR et al.

Supreme Court of Rhode Island.

Nov. 22, 1897.

Trespass on the case for negligence by Helen A. Railton against Ransom C. Taylor and another. A demurrer to a special plea in bar is sustained.

James C. Collins and James C. Collins, Jr., for plaintiff.

James L. Jenks, for defendants.

TILLING HAST, J. This is an action of trespass on the case for negligence. The plaintiff is a tenant of the defendant Taylor under a writen lease. The declaration alleges, in the first count thereof, that the plaintiff entered into possession of the store in question, which consisted of a portion only of the building owned and controlled by the defendant. Taylor; that a portion only of the cellar under said store is occupied by plaintiff; that the remainder of said cellar is occupied by said Taylor, and contains steam-heating apparatus, planned for and used by said defendant in the heating of the stores and rooms in said building; that said heating apparatus was put in by defendant, and is under his control and management; that said store was let to the plaintiff for the purpose of a dry-goods store; and that the defendant Taylor has so negligently managed his part of the premises, including the heating apparatus, and all appliances connected therewith, as to cause large amounts of smoke, dirt, ashes, gases, and an excessive amount of heat to arise into the plaintiff's store, and render the same unfit for the purposes of trade, thereby greatly damaging the stock of goods of the plaintiff; and, furthermore, that said defendant has persisted in said negligence, though often warned by the plaintiff of the damage he was thereby doing. The second count alleges that the plaintiff's store was let to her by said defendant for, and used by her in, the sale of dry goods, fancy goods, etc.; that said defendant kept and used a portion of the cellar under the store for the heating of the building, having furnished the same with steam-heating apparatus; that there were means supplied for the receiving of coal into said cellar, and for the removal of ashes therefrom, all of which were put in and constructed in an unsafe and unsuitable condition for the use they were intended for, and to which they were afterwards put; that said cellar was let to and used by one Bliss for the heating of said building, he being a tenant of the upper portions of said building; that said Bliss entered into possession and used said apparatus and the appurtenances thereunto connected, as was intended by said defendant that they should be used, and as a result thereof large quantities of smoke, dust, coal, dirt, ashes, gases, and an excessive amount of heat were caused to arise into the store of the plaintiff; that said defendant was frequently warned of these defects, but neglected to remedy the same; and that by reason thereof the plaintiff has suffered damage by reason of the loss of trade, etc. The third and fourth counts are substantially like the second. After the commencement of the action, the plaintiff, by leave of court, summoned in Harlan P. Bliss as a defendant, and in sundry additional counts charges him with negligence in the management of said heating apparatus, which plaintiff here alleges was under his control. Other counts were also added, charging the defendants jointly with negligence in the control and management of said heating apparatus, and also charging that said heating apparatus was improperly constructed as aforesaid, whereby plaintiff suffered damage. To this declaration the defendant Taylor has filed a special plea in bar, setting up that by the terms of the lease entered into between him and the plaintiff it was agreed that he should not be liable for any loss or damage suffered by the plaintiff from any cause or reason whatsoever; wherefore he prays judgment, etc. The provision in the lease relied on in bar of the action is as follows: "And it is also hereby understood and expressly agreed by the parties to this indenture that all merchandise, furniture, and property of any kind which may be on the premises during the continuance of this lease is to be at the sole risk and hazard of the lessee, and that, if the whole or any part thereof shall be destroyed or damaged by fire, water, or otherwise, or by the use or abuse of the Cochituate water, or by the leakage or bursting of water pipes, or in any other way or manner, no part of said loss or damage is to be charged to or be borne by the lessor in any case whatever. And the lessee further promises that she will keep whole and in good condition all the window and other glass on the premises, and also the pipes, faucets, and water fixtures, and that she will leave the same whole, and in good condition, at the termination of this lease." The plaintiff contends that this provision cannot properly be so construed as to exempt the lessor from liability for his own negligence or for that of his servants and agents. We agree to this contention. The exemption clause of the provision above quoted includes two classes of causes of injury which might be sustained by plaintiff, viz. damage by fire and damage by water, and the other and more general terms used in connection...