Abbott v. Jackson

Walton, J. The plaintiff has obtained a verdict for two thousand dollars against the trustees of the estate of the late John B. Brown, for injuries claimed to have been received through their negligence. The case is before the law court on motion and exceptions. We think the exceptions must be sustained. The negligence complained of was the omission to keep in repair a railroad crossing on Brown’s wharf in Portland. 'The crossing led into a lumber shed owned by one Mark P. Emery, and the crossing was built for and used exclusively as a means of entrance to the shed. It was admitted that the shed stood on land owned by the Brown estate; but it was denied that the estate or the trustees were under any obligation to keep the crossing leading into the shed in repair. Upon this point the jury were instructed as follows : " Within the limits of the tenancy, a tenant is under obligation to repair and maintain the property occupied by him in a reasonably safe and convenient manner; but he is not obliged legally, as far as the public is concerned, to maintain in a reasonably safe and convenient manner, access to it over the property owned by another; that responsibility and burden rests upon the owner himself; so if the spot upon the wharf where the accident occurred was not within the limits of Emery’s [457] tenancy, not -within the limits of the territory occupied by him, then the owners of this property having leased it to Mr. Emery, are under the duty to all persons who do business with Mr. Emery, to provide a reasonably safe access to that property.” This ruling seems to be the exact opposite of what the law is. The law requires every one having a place of business to which he expressly or impliedly invites others to come to do business with him, to maintain a reasonably safe means of access to it, notwithstanding such place of business is upon leased land, and notwithstanding the means of access to it is over the land of another. And the responsibility and burden of providing such means of access to his lessee’s place of business does not rest upon the lessor or the owner of the land over which such access may pass. And in these particulars the ruling seems to be the exact opposite of what the law is. A way, ex vi termini, implies a right of passage over another’s land. As an easement, it cannot exist without a servient as well as a dominant estate. "The way must be kept in repair by the owner of the easement, and not by the owner of the land over which it passes.” Per Morton, J., in Jones v. Percival, 5 Pick. 485. "The owner of the soil was under no obligation to repair the road, as that duty belonged to the party for whose benefit it was constructed.” Per Huger, C. J., in Herman v. Roberts, 119 N. Y. 37 (1890). The lessor of a building is not liable to one who, in passing along a walk leading from the street to a building for the purpose of transacting business with the tenant, is injured for want of a railing, although the premises were in that condition prior to the letting. "The occupier of a building, who negligently permits the building, or the access to it, to be in an unsafe condition, is liable for an injury occasioned'thereby to a person whom he by invitation, express or implied, induces to enter upon it.” Per Morton, J., in Mellen v. Morrill, 126 Mass. 545. "The duty of the tenant to keep in safe condition the demised premises extends to all the appurtenances connected therewith, and this includes steps, stairways, and other approaches.” Per Elliot, J., in Purcell v. English, 86 Ind. 34. [458] It is suggested by the plaintiff’s counsel that the ruling may be sustained upon the ground that when there is but one stairway or passage leading to several tenements, the duty of keeping such stairway or passage in repair remains with the landlord. It is impossible to sustain the ruling upon that ground : for, in the first place, the ruling was not placed on that ground ; it was placed on an entirely different ground ; and, in the second place, the evidence would not have justified resting it on that ground, if it had been the intention of the presiding justice to do so. The plaintiff claims to have been hurt while using the crossing leading out of Emery’s shed ; and the exceptions state and the evidence shows that this crossing was constructed for no other purpose than to furnish a convenient way to and from the shed, and that it was never used for any other purpose. It was not a way used in common with other tenants. It was an appurtenance belonging exclusively to Emery’s lumber shed, and used exclusively as such. And the fact must not be overlooked that this crossing was something separate and distinct from the railroad passing by the shed, and something separate and distinct from the carriage road leading down the wharf. It was constructed of planks and extended only about ten feet from the shed. And it is claimed that, as the plaintiff was driving out of this shed with a load of lumber, a loose plank in the driveway tipped up on to its edge, and, as the fore wheels of the jigger passed over it, causeda jolt, which threw the plaintiff from his seat and broke his leg. Now, if it had been conceded that it was the duty of the defendants to keep the railroad in front of the shed in repair, and if it had been conceded that it was their duty to keep the carriage road leading down the wharf in repair, still, the question would have remained whether it was their duty to keep the entrance into Emery’s lumber shed in repair; and we fail to see how, upon the evidence, there could have been but one answer. No contract to keep it in repair was proved, so as to bring the case within the principle on which the decision rested in Campbell v. Sugar Company, 62 Maine, p. 564. No tenancy in common, or use by several tenants, was proved, so as to bring the case within the principle on which [459] the decision rested in Sawyer v. McGillicuddy, 81 Maine, 318. Whether the driveway leading into Emery’s shed was or was not wholly within the territory leased to him, was unimportant. It was a question that in no way affected his liability to keep the way in repair. It seems to us perfectly plain that the driveway from the lumber shed across the railroad track to the carriag-e way extending up and down the wharf, was one of the appurtenances belonging exclusively to the shed and the land on which it stood; and that it was as clearly the duty of the owner of the shed and lessee of the land on which it stood, to keep that driveway in repair as it was to keep the shed itself in repair; and that it was no more the duty of these defendants to watch that approach to the shed, and see that it was kept safe for use, than it was to watch the shed itself and see that that was kept in a safe condition. We think that upon this point the ruling w'as wrong, and that the verdict returned would have been wrong, if the ruling had been correct. We think that upon the evidence reported, the jury might have been very properly instructed to return a verdict for the defendants. McKenzie v. Cheetham, 83 Maine, 543, and cases cited. And very full notes upon this branch of the law will be found in Lowell v. Spaulding, 50 Am. Doc. 776; Godley v. Hagerty, 59 Am. Dec. 733; Zoebisch v. Tarbell, 87 Am. Dec. 661; Welch v. Wilcox, 100 Am. Dec. 114; Elliott v. Rhett, 57 Am. Dec. 759 ; Purcell v. English, 44 Am. Rep. 262; Bowe v. Hunking, 46 Am. Rep. 474; Herman v. Roberts, 16 Am. St. Rep. 803; Edwards v. Railroad, 50 Am. Rep. 659 ; Wolf v. Kilpatrick, 54 Am. Rep. 672. Motion and exceptions sustained. New trial granted. Petejrs, C. J., Virgin, Emery, Foster and Haskell, JJ., concurred.