Inhabitants of Milford v. Holbrook

Hoar, J. The principal question presented by the bill of exceptions is, whether the defendant was in such a sense the occupant of the building called Union Block, and the awning attached to it, as to be responsible for its defective and unsafe condition, and bound to indemnify the plaintiffs for the damages recovered against them by Day. The law applicable to the point has been very distinctly stated in several adjudged cases in this commonwealth; and the only difficulty is in its application to the particular state of facts in proof. The rule is, that the occupier, and not the landlord, is bound, as between himself and the public, so fa.r to keep buildings in repair that they may be safe for the public; but if the landlord is bound by express agreement with the tenant to repair, the party injured by a defect or want of repair may have his action against the landlord in the first instance, to avoid circuity of action. Lowell v. Spaulding, 4 Cush. 277. Boston v. Worthington, 10 Gray, 496. Kirby v. Boylston Market Association, 14 Gray, 249. We are then to consider whether there were any such occupier of this awning, to the exclusion of the defendant, at the time the — 22 — damage occurred, as would exempt him from responsibility. And we think that the facts admitted and proved, although wanting some of the elements which governed the decision in Kirby v. Boylston Market Association, are sufficient to bring the case within the reason of that decision, and that the ruling at the trial was right. The defendant owned the whole building, and all parts of it which were not leased to other persons remained in his own occupation. On the lower story were three shops, and a doorway and staircase leading to the rooms above. The awning was an entire structure, extending over the sidewalk across the whole front of the building. There was evidence that it was built and maintained for the advantage of the shops ; but there was no evidence that it was expressly leased with them, or either of them. Certainly the part extending over the doorway leading to the upper story was used in connection with that, and would furnish protection and convenience to persons resorting to the upper rooms. One of those rooms was leased to the town for a public library, and another to a fire company. The hall and a room opposite were in the defendant’s possession under the care of an agent, and let from time to time for temporary purposes. The town and fire company would of course have a right of passage by the stairs and entry in common with persons resorting to the hall, and with the defendant himself. There was obviously, therefore, no such leasing of the upper story to tenants as would exonerate the landlord from all responsibility for the whole building; nor, as we think, as would create any responsibility in the fire company or the town for the condition of the passages leading to the rooms which they hired. That responsibility remained with the general owner and partial occupant. And in view of all these facts, we think his liability for the awning is like that which he would be under for the condition of the roof, the eaves, the chimneys, or other parts of the building not appropriated to the exclusive use of any particular tenant, or to all of them to the exclusion of the landlord. It would seem to make no difference in the result, whether the liability of the landlord, if it exists at all, is exclusive, or ir — 23 — common with an equal one on the part of the lessees of the stores; because in an action of tort the nonjoinder of defendants is no defence. The remaining exceptions do not seem to us well founded. The notice to the defendant to take upon himself the defence of the former suit was sufficiently full and precise. The instructions as to the effect of the former judgment were precisely in accordance with the rule given in Boston v. Worthington, above cited. The plaintiffs were not in pari delicto with the defendant, and therefore the principle that one joint wrongdoer cannot have contribution against another had no pertinency. The only fault or negligence which could be imputed to the town, on the facts shown, was a failure to remedy the nuisance which the defendant had caused. This is no bar to their claim for indemnity. Lowell v. Boston & Lowell Railroad, 23 Pick. 24. Lowell v Short, 4 Cush. 275. There was no need of submitting to the jury the question whether the defendant agreed to repair the awning, as he was rightly held to be liable without reference to such an agreement. The evidence which was offered by tne defendant and rejected, to prove that the fall of the awning was not caused by its own insufficiency, and that he was not chargeable with negligence, namely, that it was caused by an extraordinary fall of snow on the day and evening before, was inconsistent with the conclusive effect of the prior judgment on the question of the defect in the way. The only defect charged was an awning insufficient to sustain the weight of snow to which it might reasonably oe expected to be exposed. It was the plaintiffs’ duty to clear the awning when more snow was upon it than it could bear, unless the fall of snow was so extraordinary and sudden that no one would be responsible »or it. Exceptions overruled