Turner v. Ridley, 2182.

• Decision Date: 22 August 1958
• Docket Number: No. 2182.,2182.
• Citation: 144 A.2d 269
• Parties: Lloyd R. TURNER, Appellant, v. Robert A. RIDLEY, Appellee.
• Court: D.C. Court of Appeals

144 A.2d 269

Lloyd R. TURNER, Appellant, v. Robert A. RIDLEY, Appellee.

No. 2182.

Municipal Court of Appeals for the District of Columbia.

Argued May 19, 1958.

Decided August 22, 1958.

Joseph H. Schneider, Washington, D. C., for appellant.

Lawrence E. Carr, Jr., Washington, D. C., with whom Michael F. X. Dolan, Washington, D. C., was on the brief, for appellee.

Before ROVER, Chief Judge, and HOOD and QUINN, Associate Judges.

HOOD, Associate Judge.

This appeal concerns the liability of a land owner for damage caused when a tree on his land fell across the abutting public sidewalk and struck an automobile parked at the curb.

Appellant owns a house facing a public street on which automobiles are regularly parked. In the small front yard and adjacent to the sidewalk stood a tree of considerable size. Apparently it was the only tree in the yard. On the evening of September 16, 1957, one Reid, a friend of appellee, parked appellee's automobile at the curb in front of appellant's house. Early the next morning the tree toppled and fell across the sidewalk, striking and damaging appellee's automobile to the extent of several hundred dollars.

At the time the tree fell there was no wind of sufficient force to cause its fall. Reid, who lived in the neighborhood, testified that prior to its fall the tree "was rotten and looked like it was dead and had very few leaves on it," and on the night before it fell he had remarked to a friend "that tree looks like it is going to fall some day." The tree in falling broke off even with the ground, and then it was observed that the tree was hollow and badly decayed with "literally thousands of bees inside the trunk."

Appellant offered no evidence but, when called as a witness by appellee, testified he was the owner of the property, that he had purchased it through an agent at foreclosure sale in the latter part of August 1957, that the property had been vacant since he purchased it, that he had never seen the property or the tree, and that he had no notice or knowledge that the tree was in a dangerous or rotten condition. The trial court, sitting without a jury, awarded judgment to appellee for the damages he sustained, and this appeal questions the correctness of such judgment.

The cases on the subject are not numerous and are not entirely in accord,¹ but we think the better rule is that expressed in Hay v. Norwalk Lodge No. 730, B. P. O. E., 92 Ohio App. 14, 109 N.E.2d 481, 486, where it was said:

"* * an owner having knowledge of a patently defective condition of a tree which may result in injury to a traveler on a highway must exercise reasonable care to prevent harm from the falling of such tree or its branches on a person lawfully using the highway"

In Brandywine Hundred Realty Co. v. Cotillo, 3 Cir., 55 F.2d 231, certiorari denied 285 U.S. 555, 52 S.Ct. 411, 76 L.Ed. 944, the court approved the following jury instruction:

"The condition of the tree in question was the result of natural causes; still, if such condition was known or by the exercise of ordinary care could have been known by the...