Palmer v. Village of St. Albans

The opinion of the court was delivered by Tart, J. The declaration in this case alleges that the defendant was in the use and occupancy of a piece of land, used for piling the defendant’s tile, and separated from the plaintiffs’ land by a fence; that the defendant’s “servants and employes,” in the defendant’s business wilfully, negligently, and carelessly piled tile belonging to said village in the defendant’s yard, and against the fence, in so careless and negligent a manner, that said tile pressed against the fence, and pressed the boards off the fence, and the boards and tile falling upon, injured the plaintiff Ellen. No question is made by the defendant but that the. declaration alleges a good cause of action. The questions arise upon the action of the court directing a verdict for the defendant. Whether the action of the court below was correct must be determined by what the evidence introduced had a tendency to show. The exceptions show that the defendant occupied the lot upon which the tile was piled, for storage purposes; and the evidence of the witnesses had a tendency to show that the tile was in the care and custody of the defendant, and that it was drawn and piled on the lot, by the defendant’s servants, in the service and business of the defendant and for its use. If these facts were established, the ownership of the tile became immaterial. If the defendant had it in its care and custody, its liability for its negligent management of it, would be the same as though it were the absolute owner of it. We think that the evidence, of the plaintiff Ellen, tended to show that the tile was negligently piled. The evidence of the plaintiffs therefore tended to support all the material allegations of the declaration, and it was error to direct a verdict. Judgment reversed and cause remanded.