Chicago Telephone Co. v. Commercial Union Assurance Co. of London

Mr. Presiding Justice Freeman delivered the opinion of the court. It is contended in behalf of appellant that the verdict is contrary to the weight of the evidence, to the law applicable and to the instructions; that the court erred in submitting to the jury the question of plaintiff’s contributory negligence since, as is claimed, there was no evidence of such, negligence; that questions of law were erroneously submitted to the jury, and it is insisted that a tenant is liable to third persons for damages resulting from the defective condition of the premises of which he has notice or from his negligent use of them, regardless of the duty to repair as between tenant and landlord. The court gave at the instance of appellant an instruction as follows: “The jury are instructed that if they believe from the evidence that the plaintiff’s property was damaged by an overflow of water coming from a washroom exclusively occupied and controlled by the defendant, then the law raises a presumption that the damage was due to the negligence of the defendant, and unless the defendant has shown by a preponderance of the evidence that it was not due to such negligence, the jury should find the defendant guilty.” We concur with appellant that this instruction correctly states the law applicable. Mendel v. Fink, 8 Bradwell, 378 (382), and cases there cited. In that case it is said that if water closets and the like were not under the landlord’s “management, or that of his servants, but were under the management of a tenant or tenants and the latter made a negligent use of them, the landlord would not be responsible.” It is true that “the landlord as to that portion of the building and appurtenances over which he retains control, must be held to also retain the responsibility to keep the same in reasonable repair in respect to all persons, including the tenants of the building.” Payne v. Irwin, 144 Ill. 482-488, and cases there cited. But if a tenant is in exclusive control and occupation of a washroom in which an overflow occurs in consequence of the tenant’s negligence or that of its employes having free access to such washroom, then it is not the landlord but the occupant of the premises who must be deemed responsible. Warren v. Kauffman, 2 Phila. 259. In the present case there is evidence, apparently undisputed, which tends clearly to show that the room fitted up for appellee’s use as a coat and washroom, in which the overflow occurred, was at the time exclusively occupied by and under the control of appellee. It is probably true, as said by the latter’s attorneys, that the janitors of the building had access to it. In the same way they had access to the other rooms occupied by appellee. It is true also that “room 927,” which included the washroom, was not mentioned among the rooms expressly named in the written lease; but the fact remains not only that it had been taken possession of by appellee with the consent of the landlord, and that at the time of the accident it had been occupied by appellee “a dozen years or more without let or hindrance,” as appellee’s manager testifies, but the washroom had been expressly fitted up for appellee’s use. When additional space was rented appellee found it necessary to “rearrange the washroom,” and the manager discussed that with the agent of the building, telling the latter “what we would like to have with reference to fitting up that washroom, and he went to work and did it.” A spring lock was put upon the door and each of appellee’s employes was furnished with a key. The only other key was in the possession of the head janitor. ■ That appellee had this washroom under its exclusive control in the same way for practical purposes as the rooms adjoining, which it occupied under its written lease, cannot under the evidence be regarded as fairly open to question. It is contended in behalf of appellant that in view of such exclusive possession and control it devolved upon appellee to show affirmatively that the overflow was not due to its negligence, and that appellee has failed to do this. Evidence was introduced tending to show that two of the faucets in the washroom were found open, discharging water which overflowed the bowls, that the faucets were spring faucets, that the springs did not always close automatically, that sometimes when they were opened the water did not flow immediately, and that the waste pipe was inadequate, not having sufficient pitch or . inclination, that the trap leaked and that the plumbing generally was out of order. The washroom had, however, been- visited within a very short time before the overflow was discovered, by some of appellee’s employes who had obtained or attempted to obtain water from these faucets. One of these employes testifies that the water did not run, and he left without washing his hands. He and others testify that the faucets did not always close when the spring was released. So far as appears from the evidence no one except these employes had been there that forenoon. The five janitors of the building testify that they had not been in the room during the day until after the discovery of the overflow. This is not disputed. The evidence therefore in the absence of any showing to the contrary warrants an inference that some one or more of these employes may have left faucets open, through which when the cause which temporarily obstructed the flow was removed the water ran out, overflowing the bowls and causing the injury complained of. The burden was, we think, upon appellee to disprove the inference of negligence arising from its control of the washroom and the presence of its employes immediately preceding the overflow. It is argued in behalf of appellee that “it was conclusively proven upon the trial, and it was not denied by anybody, that the condition of the wash bowls, the faucets, the waste pipes, the trap and the entire plumbing in that washroom was such that with the use of the most extraordinary care an overflow could not have been prevented by appellee;” and “that after this overflow the owner of the building had plumbers there who ripped out all the plumbing, put in new faucets and gave a-pitch to the waste pipe.” It may be granted, as there is evidence tending to show, that the plumbing and waste pipe were not in good order and condition, but if so, it was manifestly appellee’s duty to take whatever care was necessary under the circumstances to prevent an overflow; and it does not follow, as claimed by appellee’s attorneys, that the jury were justified in concluding that the fault and 'negligence causing the injury complained of was that of the landlord and nobody else. The alleged bad condition of the.plumbing is immaterial, if the proximate cause of the overflow was negligence of appellee or its servants in leaving the faucets open. It may be that with better plumbing, carelessness in using it would not have been so likely to cause an overflow; but if the overflow was in fact caused by such negligent want of care, it was this and not the condition of the plumbing that must be deemed the responsible cause of the injury. The question of fact was for the jury. It is further contended in behalf of appellant that the trial court erred in submitting to the jury the question of plaintiff’s contributory negligence, when, as it is said, there was" no evidence of any such contributory negligence upon which to base the instruction. The instruction complained of told the jury that “if from the evidence you believe that in exposing its cable heads in said building and not keeping-said cable heads concealed or covered so that they would not be subject to injury by overflow of water, the plaintiff was guilty of negligence contributing to bring about the injury complained of, then you are instructed that the plaintiff can not recover in this action.” The ozite with which the potheads of appellant’s cables were filled to protect the wires was not, it appears, waterproof; and the wetting of the insulation on the wires in three out of about forty potheads in the room where the accident occurred by reason of the overflow overhead caused them to ground and put them out of service. A few months after the accident appellant made all its potheads throughout the city water-tight. Appellee’s contention is that as the apparatus was of a nature such as to be so easily affected by moisture, and the amount of damage resulting from a wetting would be so large, appellant was bound to anticipate and provide against such loss by putting tin caps over the potheads or using other adequate means to prevent water reaching them; and that it was proper to submit to the jury the question of fact whether appellant was not negligent in failing to thus protect apparatus so sensitive and expensive. We cannot concur in this view- It would necessitate holding that appellant was guilty of contributory negligence in not anticipating that appellee or some one else might negligently permit water to escape in such quantities as to penetrate floors and ceilings at that particular place, when no reason appeared to apprehend any such danger. In Engel v. Smith, 82 Mich. 1, 7, it is said: “It is a sound rule of law that it is not contributory negligence not to look out for danger when there is no reason to apprehend any. Beach, Contrib. hi eg., 41;” the rule being that “every one has a right to presume that others owing a special duty to guard against danger will perform that duty. ’ ’ See also Thompson on Neg., secs. 190, 191. It may be that if there was' evidence tending to show appellee had reason to apprehend such danger, the question of fact might properly be submitted to a jury. In the case at bar there is no such evidence. In Thompson on Negligence, section 191, is an illustration in point: “A moors his boat below the point on the river where B has moored his barges. Through the negligent manner in which B’s barges are thus moored, they break away and striking A’s boat, sink it. The place where A moored his boat was a safe place but for B’s negligence. A may recover damages of B.” Many similar illustrations may be found. One is given in Fraler v. Sears Water Co., 12 Cal. 555: “We apprehend that if a man carelessly fires a gun into the street, that it would scarcely be admissible for him, when sued for the injury, to say that by reasonable care, the other might have got out of the way.” See also Curran v. Weiss, 26 N. Y. Supp. 8. We are of opinion the instruction complained of was erroneous. It is further contended that the trial court erred in submitting to the jury a question of law. The question so submitted was whether from the evidence “it was the duty of the landlord or owner of the building to keep such faucets and wash bowls and waste pipes in repair, and that no duty of that kind devolved upon the defendant at the time that the overflow is claimed to have occurred. ’ ’ The landlord is not a party to the suit and the question whether it was the landlord’s or tenant’s duty to keep the plumbing in repair was not involved and was wholly immaterial to the issues between the parties to the action. We think it was erroneous to submit such question to the jury. The point in controversy was whether appellee was guilty of negligence causing the injury, and if it was, its liability would not be affected by failure of the landlord, if failure there was, to perform whatever duty to repair he might owe the tenant. “As a general rule the occupant and not the owner is responsible for injuries arising from a failure to keep the premises in a proper state of repair.” Tomle v. Hampton, 129 Ill. 379, 383. For the errors indicated the judgment must be reversed and the cause remanded. Reversed and remanded.