Inhabitants of Milford v. Holbrook

*The owner of a building, who has leased the lower story for shops, and portions of the uppet story for various purposes, including one or two rooms to the town in which the building is situated, and has himself remained in possession of the residue thereof, is, in the absence of an express agreement with tenants to the contrary, responsible for the safety of an awning erected along the whole front of the building, for the benefit of the shops. [f in such case the owner has had due notice, he may be held liable to the town tor damages which they have been compelled to pay to one who has suffered an injuiy by reason of the falling of the awning, through a defect; and the occupants of the shops need not be joined as defendants. ¿ notice by the town to such owner >f an action brought against them to recover damages for an injury sustained on the sidewalk in front of or near Union Block, so called, in RLiford,” (that being the naoae of his building,) requesting him to defend the same, and stating that, if the town was liable, he was responsible to them, because the injury, if it occurred, must have occurred through his negligence, sufficiently connects the defendió} and his property with the alleged injury. In such action by the town against such owner, after such notice, the verdict and judgment against the town are conclusive evidence of the existence of a defect in the highway, the injury to the individual while he was in the exercise of due care, and the amount of the injury.

Tort to recover of the defendant the amount recovered ot the plaintiffs by Cornelius T. Day, for an injury sustained by reason of a defect in and over a public sidewalk in Milford. The original case is reported in 5 Allen, 98. At the trial in the superior court, before Allen, C. J., the plaintiffs contended that they were entitled to recover on the ground that the defendant was the owner of the building to which the awning, by the fall of which the injury was occasioned, was attached; and the following facts appeared : The awning was erected by the defendant along the entire front of a building owned by him, called Union Block, being attached to the building by boards and rafters, just above the row of windows in the first story, and supported by several iron rods fastened at the lower end in the curbstone of the sidewalk, within the limits of the highway. The awning was one entire structure of wood. The building was two stories high, having three shops in the lower story, fronting on the sidewalk, of about equal width, and extending back the whole depth of the building. Two of the shops were let to tenants, by written leases which contained no stipulation as to repairs; and the other, under a verbal agreement, and the evidence as to who should make the repairs was conflicting. There was an entrance and flight of stairs between two of the shops to the upper story, in which there was a hall and room connected therewith, another room occupied by the town for a public library, and a room which at the time of the injury had lately been occupied by a fire company belonging to the town. The hall was occasionally let by the defendant. The library room was let with no stipulation as to repairs. The fire company had paid rent quarterly for the room occupied by them, and had vacated the premises without any notice to the defendant to terminate their tenancy. There was evidence tending to show that the awning was built and maintained for the advantage of the shops, that signs were placed on the front edge thereof, and articles were suspended under the same; that the occupant of one of the shops had also repaired and propped up the awning; that the defendant had paid for repairs of the awning; and that he had also repaired the damages done to the shops by the fall of the awning, in breaking the windows, he contending that he did so merely to preserve his property. The plaintiffs were allowed to introduce, under objection, the following notice, signed by their selectmen, and served by them upon the defendant, to defend the original action: “ Sir: You are hereby notified that Cornelius T. Day, of Milford, has commenced an action against the inhabitants of the town of Milfor for damages alleged to have been sustained by him by reason of an injury alleged to have been sustained by him on the sidewalk in front of or near Union Block, so called, in Milford, by writ returnable before the next superior court for the county of Worcester, and you are hereby required to defend said action at your own expense and cost, because, if the defendants are liable at all, you are responsible to them, as the injury, if it occurred, must have occurred by your negligence; and, if you do not defend it, they will claim to be reimbursed by you if judgment is obtained against them therefor.” The plaintiffs also showed that, within a day or two after the injury, the defendant knew of it, and of the place where it happened. The defendant did not appear and defend the original action, nor was he present at the trial thereof. The evidence was conflicting whether or not the plaintiffs made a demand of the defendant to pay to them the amount of the judgment recovered by Day, before the commencement of this action; and the chief justice ruled that no such demand was necessary. The defendant offered to prove that, if the awning was defective and unsafe, its condition had long been known to the town, and they had been requested to attend to it, but had neglected to do so,, after notice that it was dangerous, and that its fall was caused by an extraordinary snow storm during the previous afternoon and evening, but the evidence was excluded. The defendant asked the court to rule that he was not liable to keep the awning in repair, unless there was an agreement between him and the tenants to that effect; that unless he agreed to make repairs in the shops, the occupants of them were liable for the defective condition of the awning; that it was a question for the jury whether he had made such agreement; and that, if the plaintiffs occupied a part of the building without any agreement as to repairs, they could not maintain this action. The chief justice declined to make these rulings, and instructed the jury that the defendant was liable for the defective and dangerous condition of the awning, and was not exempt from repairs on the entire exterior of the building, including the awning, so far as to render it safe; that the notice to defend the original action was sufficient, and the verdict therein was binding on the defendant as to the existence of a defect in the highway, the injury to Day, while using due care, and the amount of such injury. Evidence was introduced by the plaintiffs of several falls of snow on several days previous to the injury, and there was no evidence that the same had been shovelled off from the awning, at the time of its fall; whereupon the defendant asked the court to rule that the former verdict did not conclude the defendant as to whether the defect which caused the fall was its original insufficiency and weakness, or the accumulation of the snow upon it for several days prior to the accident, and, if the jury should find the latter to be the true cause of the defect, the defendant would not be liable unless guilty of negligence as to the existence of such cause; but the chief justice declined so to rule. The jury returned a verdict for the plaintiffs, and the defendant alleged exceptions.