Moore v. Townsend

78 N.W. 880, 76 Minn. 64, 1899 Minn. LEXIS 538

• Court: Supreme Court of Minnesota
• Decided: April 21, 1899
• Docket: Nos. 11,663—(60)
• Status: Published

Opinion

COLLINS, J.

Action against the owner and occupants of a store building, and the village in which it was located, to recover for injuries caused by the falling of a ladder upon plaintiff while he was walking upon a sidewalk. The iadder was about 40 feet long, made up by fastening three short ladders together, the lower end resting in the gutter outside of the walk, while the upper end was placed against the building. It was placed there some weeks before the accident, by a third party, who had contracted with the owner of the building to paint it on the outside, furnishing his own equipment and material. The contractor had finished his work 13 days, at least, prior to the day on which it was blown down by an unusual blast of wind, and proof of the defendants’ knowledge of all of the facts was plenary. The verdict was for plaintiff.

1. All of the defendants join in the appeal from an order denying a motion for a new trial; and their counsel contends that no recovery can be sustained, because the ladder was placed in position by the painter, an independent contractor, for whose negligence defendants cannot be held liable.

Without stopping to consider the availability of such a defense on behalf of the village, it is obvious that it is of no value to any of the defendants, on the facts now before us. The occupants and the owner of the building, without surrendering control over it, permitted the painter to create a nuisance in the public street when they allowed him to put the ladder in a position over the walk where it was a continual menace to all persons within its reach should it fall down. They, as well as the defendant village, maintained this nuisance for several weeks, and, as before stated, for at least 13 days after all necessity for use of the ladder had passed. By employing an independent contractor the owner or occupants of the building could not relieve themselves of the continuing duty which they owed to the public not to create or maintain a public nuisance on their premises. Nor could the village absolve itself of a like duty in respect to permitting a nuisance to be maintained, partly or wholly, in its streets. If a ladder placed over the sidewalk, as this was, could be allowed to endanger the lives and limbs of passers-by, the keeping open of a coal hole in a sidewalk could be defended on the same grounds. The question of defendants’ negligence, under the circumstances here, was peculiarly for the jury. See Simpson v. Stillwater Water Co., 62 Minn. 444, 64 N. W. 1144; Clarke v. Rhode Island, 16 R. I. 463, 17 Atl. 59.

2. There is nothing in the claim that defendants were not guilty of negligence, because the ladder was blown down by an unusual wind. The negligence of the defendants, owner and occupants, in allowing the ladder to be inclined and to remain across the walk, and of the village, after its officers had knowledge of the fact, was the efficient cause of the injury to plaintiff. The fact that some other cause operated in connection with this negligence could not relieve defendants from liability. The original negligence concurred with another cause, and, operating at the same moment, produced the injury. The original negligent act of placing one end of the ladder in the public street, inclining it over the walk, and resting the upper end against the building, thus creating a public nuisance, was the proximate cause of the accident, and without this act plaintiff’s injuries would not have been received.

3. But a new trial must be ordered, because there was prejudicial error on the part of the court when ruling in respect to certain evi dence offered by plaintiff’s counsel. The village marshal was examined in reference to his knowledge of the ladder, and testified that, a short time prior to the accident, he spoke to defendant A. T. Townsend about it. The witness was then asked, “Why did you do that?” This was properly objected to by counsel for defendants, but the objection was overruled and an exception taken. Whereupon the witness answered, “It was a long, heavy ladder, and dangerous standing there, in my estimation; liable to blow down, I thought.” A motion to strike out this answer as incompetent, irrelevant, immaterial, being an opinion of the witness, and not responsive, was denied; defendants excepting. It was error to permit such a question to be propounded, because, while it was proper to show the conversation between the witness and one of the defendants in respect to the ladder, the reasons which influenced the former were immaterial; and the trial court again erred when it refused to strike out an answer, irresponsive in part, in which was the opinion of the witness as to the ladder being dangerous while standing against the building. Of course, this was not a case for the admission of expert testimony as to whether or not the ladder was heavy, or dangerous, or liable to blow down.

Order reversed.