Killion v. Power

The opinion of the court was delivered, by Agnew, J. This action was brought for negligence in leaving open a stop-cock, in the third story of a storehouse occupied by the defendant, and thereby flooding with water the store of the plaintiff in the basement. The only error assigned is to the answer .of the court to the fourth point of the defendant. This point asked the court to say, that if the jury found from the evidence that the spigot mentioned in the evidence was turned by the man Hughes, a person not in the employment of the defendant nor under his control, without the authority of the defendant or his servants, the defendant is entitled to a verdict. Evidence had been given to show that Hughes was a customer of the defendant, and was frequently at his store ; that on this occasion he came there to get some barrels; got some whiskey in a tumbler out of one of the barrels and went overhead, and was there heard at the stop-cock by one of the employees, and was told there was no water there — the water at that moment being turned off in the street while making repairs. The inference is that Hughes turned the cock, and finding no water, left it so. The court affirmed this point with the qualification, that if Hughes was not a mere trespasser the law would be as stated in their charge. The charge was that if Hughes came upon the premises with the express or implied assent of the defendant or his servants, and with the like express or implied assent turned on the water and left it running, and the defendant failed to turn it off again, there was evidence of negligence on part of the defendant. We discover no error in this. Where there is evidence of qualifying facts, the court has a right in answering a point to make the qualification which the evidence (if believed) will introduce ; foi the jury must find on all the facts and not upon a partial view. It is the duty of the court, therefore, to present the case to the jury, so that the qualifying facts will have their due weight in making up their verdict. There was ample evidence here that Hughes was not a mere trespasser. If Hughes came there by permission, and was permitted to use the' water, certainly it was negligence under the facts of this case, not to see to the condition of the cock before the store was closed for the day. The stopcock was in the third story occupied exclusively by the defendant, and where the plaintiff had no right to go. When the defendant or his servants left the store, filled as it was with valuable goods, of course it must be locked up. A duty lay upon him to take [432] care that so dangerous a thing as this stop-cock was under the circúmstances, should not be left open, to flood the store of his neighbour below stairs. The maxim sic utere tuo ut aliemcm non laedas, has here its most apposite application. It would be such negligence as entitled the plaintiff to recover. Judgment affirmed.