Lee v. McLaughlin

Poster, J. The defendant was the owner of a brick store with a slated roof, situated on the westerly side of Broad street and easterly side of Pickering Square in Bangor. [411] It appears from the evidence and admitted facts that for several years prior to and at the time of the accident, "the Avhole store, the real estate and building, were in the occupation of Thurston & Kingsbury under a tenancy at will from the defendant.” A quantity of snow Avhich had fallen upon the roof of the building slid off into the street and upon the sidewalk, thereby causing a horse Avhich was attached to a truck wagon, and belonging to one John C. Mooney, to start and run away, and in its course it came into collision with the horse and sleigh of the plaintiff, avIio Avas throAvn from the sleigh and received the injuries for Avhich he seeks to recover compensation of the defendant in this suit. Of the several positions taken in defense of this action, it becomes necessary to consider only one, and that Avhioh A\>e think is deeisir’e of this case. The plaintiff can hold the defendant liable only upon the ground that he Avas guilty of negligence towards him. Upon no other theory can such an action as this be maintained. The jffaintiff seeks to recover of the defendant as OAvner of the building upon which the siioav accumulated producing the injuries of which the plaintiff complains. Whatever may be the rights of travellers receiving injuries from the fall of siioav or ice from a roof which is subject to the use and control of the owmer, as in Shipley v. Fifty Associates, 101 Mass. 251, 106 Mass. 194, and other cases of that nature, it can no longer be regarded as an open question whether or not the OAvner of a building is liable in such a case as this, Avilen the entire control and occupation belong to the tenants. That question must be regarded as fully settled by the cases of Kirby v. Boylston Market Association, 14 Gray, 249; Leonard v. Storer, 115 Mass. 86 ; Clifford v. Atlantic Cotton Mills, 146 Mass. 47; Lowell v. Spaulding, 4 Cush. 277. The principle enunciated by these decisions is, that the occupier, and not the landlord, is bound, as between himself and the public, to keep buildings and other structures abutting upon higliAvays and streets in repair so that they may be safe for the use of travellers passing along the same, and that the occupier [412] is prima facie liable to persons injured through any defect in the same or want of care in the use of such buildings. The case of Clifford v. Atlantic Cotton Mills, supra, was an action for personal injuries occasioned to the plaintiff by the fall of snow from the defendant’s house into the highway. The house was three stories high, with a steep slate roof slanting towards the sidewalk, with no protection or railing to keep the snow from falling upon the sidewalk; the court held that the owner .of a building with a steep and unguarded roof, who lets it to a tenant, reserving only the right to enter the premises to repair the same, is not liable to a person injured by a fall of snow from the roof while travelling with due care upon the adjoining-highway, it not appearing- that the tenant might not by the use of reasonable care have prevented the accident. In the course of the opinion the court say : "The defendant’s house was not a nuisance in itself. If it was, half the householders in Boston are indictable at the present moment. It was certain to become so at times by the mere working of nature alone, unless the tenant cleared the roof, or took other steps to prevent it. But, so- far as appears, the tenant could have done so by using-reasonable care. If he could, it jvas his duty to do so, and the landlord was not liable for the reasons which we have stated.” Very similar to the case last cited was that of Leonard v. Storer, supra, in which the court held the same doctrine after-wards more fully considered i n the opinion in Clifford v. Atlantic Cotton Mills. In that case occupancy by the tenant included the roof as well as the interior, and it did not appear that he might not have cleared the roof of snow by the exercise of due care, or that he might not by pi-oper precautions have prevented the accident. That being the case, there was no neglect of duty or wrongful act on the part of the owner such as to render him liable for the injury. In the case of Shipley v. Fifty Associates, 101 Mass. 251, and 106 Mass. 194, where the owners were held responsible for injuries resulting from the fall of ice and snow from the roof upon a traveler, it will be observed that the roof was not in the control of the various occupants of the building, but of the owners, [413] and for that reason they were held liable. The same is true in the case of Kirby v. Boylston Market, Association, 14 Gray, 249; Simonton v. Loring, 68 Maine, 164; Toole v. Beckett, 67 Maine, 544, and many other cases that fall within that class where the owners have been held responsible for injuries resulting from their negligence or wrongful acts. Upon the same principle were the decisions in McCarthy v. York County Savings Bank, 74 Maine, 315; Milford v. Holbrook, 9 Allen, 17 ; Allen v. Smith, 76 Maine, 335. In the present case, the tenants had the full control and occupancy of the building. It included the exterior as well as the interior. It is immaterial whether such control and occupancy existed in consequence of a tenancy at will or by virtue of a written lease. The principle is the same. The building was not in itself a nuisance, and could become such only by reason of the action of the elements at certain seasons of the year. If there vxxs any duty to keep the roof clear of snow and ice, it belonged to the tenants. If there was any neglect, it was theirs and not the owners. Nor is there anything in the case to show that the tenants might not, by the exercise of due care, have cleared the roof of snow, or by proper precautions have prevented the accident. The tenants for the time being were in the place of the owner. Nor is if necessary to determine how far the tenant might be warranted in placing suitable guards upon the roof to prevent snow and ice from falling into the street. It has been held that the tenant would have such right, even in cases where the right is reserved to the landlord to enter and make repairs. Clifford v. Atlantic Cotton Mills, supra; Boston v. Worthington, 10 Gray, 496, 500. An ordinance of the city was introduced in evidence requiring owners of stores and houses bordering on the streets to put upon the roof of such buildings, railings or other protections to prevent slides of snow and ice, in cases where they have been notified to put on such railings or protections, within thirty days after such notice. There is no evidence whatever that any such notice, as the ordinance expressly contemplates, was ever given to any body [414] in relation to this store. This ordinance, therefore, can have no effect in determining the rights and liabilities of these parties. Those rights and liabilities stand unaffected by any ordinance, and must be tested by the principles of the common law. The entry must therefore be, Judgment for defendant.