Fitzpatrick v. Penfield
Fitzpatrick v. Penfield
Opinion of the Court
Opinion by
Appellee’s son, with five other children, was playing along an eastern wall left standing after appellant’s buildings on Ludlow and Market streets had been destroyed by fire. The wall, 59 feet long, 26 feet high, 13 inches thick, was connected with another wall at right angles on the south; a pier stood on its western side at the north end. A lot of H. B. French was on the east. A part of this lot, on the side adjoining the standing wall, was an open yard, enclosed at the southern end by a high board fence, with a large closed gate, and a smaller gate cut into the larger one. The small gate was open for some time before the fire and through it ingress and egress might be obtained. It had been nailed shut quite often, but boys just as often broke it open. Trespass notices were posted on the high fence, and iron fences were erected on Ludlow street, blocking traffic along the destroyed buildings. Children occasionally played in the
To establish negligence, it must appear that some duty has been unperformed, and without the violation of the duty there can be no negligence. A duty may be imposed either through the relation of the parties or by statute, and, where there is a duty or an obligation, some right exists in another. Speaking generally of the wall left standing after the fire and with regard to an undoubted right in another, it was appellant’s duty not to negligently, that is, carelessly, commit or omit any act whereby a person or his property might be injured. The standard by which the performance of this duty may be judged is ordinary care under the circumstances, or the conduct of an ordinarily careful person, in relation to the particular duty under consideration.
Assuming the necessary relation between the parties established, defendant owed a duty to the children; the negligent act complained of as found by the jury was in permitting a wall, 59 feet long, 26 feet high at one end, tapering down to 10 feet at the other, 13 inches thick, to stand unsupported and unguarded, without anticipating the effect of winds from a westerly direction. The part of the wall left standing after the boys were killed bore marks evidencing the close proximity of flames during
Having a defective wall standing, unsupported, was the causal connection between the wall with its defective condition and the accident such as should have been anticipated by the plaintiff — or was it vis major? If the occurrence of the accident should have been foreseen, the intervening cause will not interrupt the connection between the original cause and the injury. High winds are not of infrequent occurrence, and this particular wind was termed an ordinary wind occurring three or four times in a year. It was not an unusual one and it was for the jury to find under all the evidence whether it was likely to have occurred and should have been provided against. We cannot say that the intervening cause was vis major. One who fails in his duty to remedy a defective or dangerous condition is liable for injuries resulting therefrom although the immediate cause of the injury is the wind: Schwarz v. Adsit, 91 111. App. 576; Moore v. Townsend, 76 Minn. 64; Sutphen v. Hedden & Sons, 67 N. J. L. 324; Meyer v. Haven, 37 N. Y. App. 194; Stehle v. Jaeger, etc., Co., 225 Pa. 348, 352. The causal connection is not broken and the original wrongdoer is liable for the injury sustained.
Returning to the principle of law first noted, did the defendant owe the duty, there discussed, to the children? The case must not be confused with those where the injured person is a trespasser on the injurer’s property. There is no liability for injury to such person (except for wantonness); the owner owes no duty, either to an adult or a child of tender years, and because of the absence of a relation which imposes a duty there is no right
Had the wall been along the street, there is no question a definite duty would have been established, but the rule even as to streets does not make the owner of the premises an insurer; he is liable only for want of ordinary care and skill: 1 Thompson on Negligence (2d ed.), sec. 1056; 20 R. C. L., sec. 68, p. 77; 29 Cyc., pp. 465, 468. The wall did not face the street, it adjoined private property. So far as an adjoining owner is concerned, it is the duty of the owner upon whose land something is erected, which has become dangerous because of a conflagration, to take ordinary precautions so that no injury shall befall the adjoining owner, his property, or persons rightfully thereon. If he neglects this duty, and injury results, liability follows. The duty is alike under all circumstances where a right exists in another to use ordinary care to guard against the falling of a wall injured by fire: 1 Corpus Juris, sec. 27, p. 1211, and notes 95 and 96; 1 Thompson on Negligence (2d ed.), sec. 1060, p. 967. The governing principle in such cases is more frequently applied to nuisance than to
Assuming that the children were trespassers, the owners of the French lot would not be liable, short of wantonness or wilfulness, for anything that befell them while on these premises. This defendant would be liable to the French owners for any injury inflicted by neglect to their persons or property, or others rightfully there. So much is certain. Can she answer the parents of these children by saying: “I admit my liability to the owners of the French property for injuries inflicted against their person and property, but my liability to you for your loss on their ground extends no further than their liability to you”? What peculiar attribute of property is lodged in one landowner that he can take unto himself the benefits of a defense peculiarly applicable to the person and property of an adjoining landowner to escape liability for an injury he inflicts on a trespasser on land of the adjoining owner? Under the law he has absolutely no right of property in the adjoining lot, and, as to this lot, he is just’ as much a stranger to the title and ownership as trespassing children. By reason of being adjoining lot owners, certain mutual duties devolved upon each-other, as, for instance, the right of lateral support, and other matters.; but these obligations create no property right by which he could participate in the immunity from liability inuring to the owners of the adjoining lot and thus be absolved from liability. The defense of no liability for injury to a trespasser is personal to the owner of the premises trespassed upon; it does not inure to the benefit of strangers to the title, adjoining owners, or other trespassers.
When t’he wall fell, defendant at that moment became a trespasser. The circumstances present the case, technically, of a trespasser injuring another trespasser, and of the relative rights between the two. Defendant inquires : “How did a duty arise to the trespasser on a neighboring lot; what duty, or right, or power, had she
But, apart from this, without more than the fact of this standing wall, the adjoining lot and the accident, appellant would not be liable. She is not compelled to anticipate that some stranger would come within reach of her neglect. One engaged in the commission of a negligent act will not’ be liable for injuries resulting therefrom to another who, so far as he knows, or has reason to expect, is not within range of his negligent act; for illustration, A and B own adjoining farms; A negligently permits a tree to stand with decayed limbs and branches overhanging B’s land; X, a casual trespasser on B’s land, is injured by a limb blown from the tree; A is without notice of X’s presence, under or near the tree, and there is nothing to put him on notice; A is under no duty to anticipate X’s presence and would not be liable for the injury. Appellant’s duty to the adjoining owners did not extend to strangers or persons whom she had no reason to expect on the premises. She was entitled to some notice; she had the undoubted right to protect herself, and was entitled to be informed in some way that the lot' was made use of by others than the owners and those lawfully on the premises. She was entitled
On the question of notice, we begin with the idea — not sufficient in itself, but which, with other evidence may go to the jury — that naturally after a fire almost every one looks with great apprehension on standing walls, many avoiding them, because they may fall, while curiosity brings many others around the destroyed premises. These facts are known to the owner. We have also the fact that children occasionally played there and that others used the property, and her own testimony shows that children were chased from the premises, and warning signs were placed on the fence. Whether this was sufficient to charge defendant with notice was for the jury, even though it was not shown plaintiff’s son was among the persons from whose conduct notice might be implied. The duty of defendant, who knew, or had reason to know, that the premises were being used by others than those having a lawful right thereon, was to exercise ordinary care to guard against the wall falling. She could not carelessly do, or omit to do, any act whereby others known to be within range of the effect of such acts would suffer injury. This in substance is the principle underlying, Brown v. Lynn, 31 Pa. 510; Daltry v. Media Co., supra; Mullen v. Wilkes-Barre Gas & E. Co., 38 Pa. Superior Ct. 3. A person cannot escape liability for negligence merely because the person injured is a trespasser, where, before the commission of the negligent act, the presence of the trespasser was known to him, or ought to have been known, and by t'he use of ordinary care the defendant might have prevented the injury. One trespass will not justify another : 29 Cyc. 443, and many cases cited.
There is another class of cases coming close to the line of the class just mentioned, but entirely distinct therefrom, where the circumstances are free from dispute and were under the exclusive control of the defendant— cases where t'he accident is such as, in the ordinary course of things, would not have occurred if due care had been exercised, and in the absence of explanation by defendant the happening of the accident affords an inference that it was from want of due care. The leading case on the subject is Scott v. London & St. Katherine Dock Co., 3 Hurlstone and Coltman, 596. For illustration of the doctrine see St. Clair v. Edison Electric Light Co., 38 Pa. Superior Ct. 228; Lanning v. Pittsburgh Rys. Co., 229 Pa. 575; Hauer v. Erie County Electric Co., 51 Pa. Superior Ct. 613; Johns v. P. R. R., supra; Kahn v. Kittanning Electric Light Co., 238 Pa. 70; Zahniser v. Penna. Torpedo Co., supra. In all such cases it must be made to appear affirmatively that the appliances or circumstances which caused the injury were under the control of the injuring party, and that by the use of ordinary care an accident could not happen. In other words, the failure to provide proper care being the negligent act, when the accident occurs it can only come through one channel, that is, the negligent act. It is in effect’ the accident proving its own cause. It stands as its own accuser. It applies chiefly to the series of accidents where the rights of the parties in->
In some jurisdictions, when a wall falls, there is a prima facie presumption of negligence, subject to the explanation by defendant of the use of care: City of
The second and third assignments of error are sustained, the judgment is reversed and a venire facias de novo awarded.
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- Negligence- — -Wall standing after fire — Nondelegable duty of owner — Evidence — Burden- of proof — Presumption — Degree of proof — Causal connection — Maxims—Res ipsa loquitur — Sic utere iuo. 1. To recover damages for injuries caused by the falling of a wall, left standing after a fire, the burden of proof to show negligence by defendant is on plaintiff — who, in this case, is the mother of a child that trespassed on the adjoining property of a third person, and was killed by the wall being blown over on it. 2. The mere falling of a wall raises no presumption of negligence. The rule of res ipsa loquitur, or of absolute control, does not apply to such case in the courts of Pennsylvania, although the rule is different in other states. 3. The maxim of res ipsa loquitur applies chiefly to the series of accidents where the rights of the parties injured are closely allied to the rights of the public generally, and the information or means of information as to the occurrence itself is, or was, wholly within the control of the injuring parties. 4. The doctrine of res ipsa loquitur, or of absolute control, as established in this State, is that the evidence of negligence appears when the detailed explanation of the circumstances immediately preceding the accident, the description of the injuring appliance and the testimony from experience show that the thing which happened would not have happened had the injuring appliance or thing been securely in place or properly eared for. The happening of the accident affords a presumption of want of due care. 5. Under this doctrine, the causal connection is supplied, as is done in many other cases, by affirmative proof that the accident would not have happened had the thing been reasonably cared for, the degree of proof required being slight because of the duty imposed and the care required. 6. The owner of a wall left standing after a fire is charged with the nondelegable duty to use ordinary care to make the property reasonably safe, so that no injury shall befall the adjoining owner, his property, or persons rightfully thereon. The maxim sic utere tuo applies. Negligence — Wall standing after fire — Trespassers — Infants— Playgrounds — Attractive appliance — Invitation — Permission — Notice to owner — Warning—Proximate cause — Intervening cause —High winds — Act of God, or vis major. I. While the owner of real estate owes no duty ordinarily to trespassers and is not liable for injury to them, except for wantonness, the defense of no liability for injury to a trespasser is personal to the owner of the premises trespassed upon; it does not inure to the benefit of Strangers to the title, .adjoining owners, or other trespassers. 8. When a wall left standing after a fire falls and injures trespassers on the neighbor’s lot, the owner of the wall at that moment becomes a trespasser, and the circumstances present a case, technically, of one trespasser injuring another trespasser, and of the relative rights between the two. ^ 9. The mere fact that the trespassers are children will not impose on the owner of real estate any duty to keeprhij^rgmises safe unless he erects thereon an attractive appliance or permRsTthe land to be used as a playground for such length of?33.e Srterpresuppose an invitation or permission to occupy the premises in this manner. 10. The amount of use which will bring otherwise private property within the playground rule is such as to cause the place to be generally known in the immediate vicinity as a recreation center. 11. Evidence to the effect that an open lot was frequented by boys every Sunday for four Sundays, and possibly at one or two other times, is not sufficient to justify submission of the question of playground rule to the jury. Such children are clearly trespassers. 12. The owner of real estate cannot escape liability for negligence merely because the person injured is a trespasser, where, before the commission of the negligent act, the presence of the trespasser is known to the owner or ought to have been known, and, by the use of ordinary care the injury might have been prevented. 13. The owner of a wall left standing after a fire is entitled to some notice that the adjoining lot is being used by others than the owners and those lawfully on the premises. The warning should be received a sufficient length of time after the fire, and, assuming the wall was then defective, before the accident to trespassing children, to enable it to be properly secured against such persons. 14. The question as to whether defendant owner had sufficient notice is for the jury, on the following evidence: Beginning with the idea — not sufficient in itself, but which, with other evidence, may go to the jury — that .almost every one after a fire naturally looks with great apprehension on standing walls and that curiosity brings many others around destroyed premises, which facts are known to property owners; also that children in this case occasionally played on the adjoining lot, and defendant’s own testimony showed that children had been chased therefrom, and that warning signs had been placed on the fence through which the children entered. ■ 15. One who fails in his duty to remedy a defective or dangerous condition is liable for injuries resulting therefrom although the immediate cause of the injury is the wind. 16. If the occurrence of the accident should have been foreseen, the intervening cause will not interrupt the connection between the original cause and the injury. . 17. If the wind was not an unusual one, it cannot be called an act of God or vis major, so as to relieve defendant from liability.