Martin v. Dufalla

Opinion of the Court, Waterman, J. - This is an appeal from a judgment rendered for damage done by the falling of appellant’s building, while in course of construction, whereby appellee’s cottage was demolished. It is conceded that appellant was constructing a large, five-story brick building, and that upon a fair day, no tempest blowing, it fell upon and destroyed the dwelling of appellee; this having been proven, we think it devolved upon appellant to show that the fall was without his fault. Buildings properly constructed do not fall without adequate cause. But for the act of appellant in building his large structure, the premises of appellee would not have been harmed; destroyed as they were by the falling of appellant’s manufactory thereon, it is for him to show that he was not at fault. Mullen v. St. John, 57 N. Y. 567; Chantler v. Robinson, 4 Exch. 163, 170; Gorham v. Gross, 125 Mass. 232, 237; Shipley v. Fifth Associates, 106 Mass. 194, 198; Kappes et al. v. Appel, 14 Brad. 170. . The case is one in which the principle res ipsa loqxdtur is applicable. 2 Thompson on Negligence, 1220. It is urged, for the first time in this court, that the action should have been brought in the name of a conservator said to have been appointed for Dufalla, who is an insane person. Such objection can not be here urged for the first time. Until a conservator of a lunatic is appointed, suits are properly brought in the name of the lunatic. Chicago & Pacific Ry. Co. v. Munger, 78 Ill. 300. There was no competent evidence that a conservator for the plaintiff had been appointed; such appointment is a judicial act, and should be proven by a copy of the record; in the present case, a witness merely incidentally testified that he had been appointed conservator of appellee. We find no error in this record warranting a reversal of the judgment, and it is affirmed.