Marshall, J.
At the outset, the question of the liability •of Elihu Colman is of paramount importance. It stands without question on the record that he was the owner of the street-car track at the time of the injury complained of, and had been such for several months prior thereto; that the defective condition of the street existed when he purchased the property; that he then knew of the facts; that the railway company occupied and used the property the same after such purchase as before, but pursuant to an option to buy it back, the particulars of which option were not testified to. The learned circuit judge decided as a matter of law, on such facts, that Colman was not liable for the injury to plaintiff, because the defects in the street were not caused by, nor did they arise ■from, or were they produced by, him. That reasoning hardly meets the facts of this case fully. ' It leaves out the element that Colman continued the defective condition of the street by allowing the railway company to hold under him without any covenant on its part to remedy such condition. "With the added element, the decision has some support by some things said in Fellows v. Gilhuber, 82 Wis. 639, where the awning in front of an hotel was thrown down, partly through defects existing in one of the supporting, posts, whereby a guest at the hotel, standing on the walk, was in[338]*338jured, the hotel being in possession of a lessee, and the defect existing with knowledge of the landlord when the lease was made. It was held that the lessor was not liable, but the decision was put on the ground that there was an agreement in the lease which obligated the lessee to repair. Upon that theory the decision is in accord with much authority in this country and England, but it must be said there is much authority of a very respectable character against it. Whatever is said in the opinion, however, that may be read, to support the proposition that the rule that a landlord who leases dangerous premises, knowing, or with means of knowledge, of such dangers, without any covenant to repair on the part of the lessee, is not liable to the tenant or subtenant holding under the first lessee, or any person having business connection with the property, under the tenant, injured by such dangers, applies to cases arising between the landlord and a mere stranger lawfully in the vicinity thereof, and injured thereby, must be considered as obiter and the decision read as applying only to the facts of the particular case.
The law is firmly established bj^ the great Aveight of authority, that, as between the owner of leased property and a mere stranger, the owner is liable for an injury to the latter, caused by a dangerous defect in the property existing at the time of the lease, unless protected by a covenant binding the lessee to remedy such defects; and there is much authority that he is liable anyway, that is, that he cannot shift the liability for known existing dangers onto the lessee by a covenant to repair. But there is no necessity for discussing the conflict in that regard, in this case, for there is nothing in the record to indicate that the railway company was under any obligation to Colman to repair the defects in the street caused by the railway track. So far as appears from the evidence, the company continued in possession of the property without any agreement other than a mere option to purchase.
[339]*339Authorities which apply to the facts unfavorably to plaintiff are very numerous, and without substantial conflict. We will cite but a few of them. In Conhocton Stone Road v. B., N. Y. & E. R. Co. 51 N. Y. 573, defendant demised premises, in a dangerous condition, and was held not liable for want of notice of the defects at the time of the demise, or thereafter, prior to the injury. In Ahern v. Steele, 115 N. Y. 203, defendants became the owners of a defective pier, subject to an outstanding lease which contained no covenant to repair. The defects antedated the lease. They were created and existed before the property came to the defendants. The court held that defendants were not liable for the injury caused by such defects, though solely on the ground of want of notice. To the same effect are Irvine v. Wood, 51 N. Y. 224, and Swords v. Edgar, 59 N. Y. 28. In Albert v. State, 66 Md. 325, the following instruction given in the trial court was approved, the action being to recover damages sustained by a minor through the death of his parents, caused by a defective wharf occupied by the defendant’s tenant: “If the jury find that the defendant was the owner of the wharf, and that he rented it out to the tenant, and at the time of the renting the wharf was unsafe, and that the defendant knew, or by the exercise of reasonable diligence could have known, of its unsafe condition, then the plaintiff is entitled to recover.” To the same effect are Knauss v. Brua, 107 Pa. St. 85; Cunningham v. Cambridge Sav. Bank, 138 Mass. 480; Dalay v. Savage, 145 Mass. 38; Nugent v. B., C. & M. R. Co. 80 Me. 62.
The rule appears to be very firmly established as above indicated, that under circumstances such as mentioned in the foregoing authorities, there being no covenant to repair or remedy defects on the part of the tenant, the liability of the owner for injuries thereby received turns on knowledge, or reasonable means of knowledge, of the existence of the defects on the part of such owner. Probably no case can be found that more nearly touches this at every point than [340]*340Dalay v. Savage, supra. There the defendant purchased premises abutting on a public way, having a defective coal hole in the sidewalk appurtenant to the premises, which caused the injury. Defendant had a right to the possession, butj instead of asserting it, left the person, in possession who was there at the time of the purchase, as a tenant at will, without any agreement to repair the coal hole. It was held that the defendant was liable.
Further citations appear to be unnecessary. The rule on which they proceed is quite elementary, and may be stated thus: If a person purchases premises which are in a defective condition, with knowledge, or reasonable means of knowledge, of the defects, and then leases the same to another, or allows such other to hold possession of such premises .under such conditions as to indicate permission to continue the defects, and a third person having no connection with such other, without fault on his part, is injured by reason of such defects while rightfully in the vicinity of the danger, such purchaser is liable to respond in damages to such third person for such injury.
Applying the foregoing to this case, it must be held that Colman, by reason of his ownership of the property and knowledge of its dangerous condition when he purchased it and up to the time of the injury complained of, was liable to-the plaintiff. His allowing the railway company to remain in possession, especially without any agreement on its.part to repair the street, did not operate to relieve him from responsibility. As said in Dalay v. Savage, 145 Mass. 38, that the railway company was also liable, is no defense for Colman, who held the title and was the actual owner of the property.
There is nothing in the foregoing inconsistent with what was decided in Fellows v. Gilhuber, 82 Wis. 639, or Dowling v. Nuebling, 97 Wis. 350. In the latter case the contest was .between the landlord and his tenant.
What has preceded leads to a consideration of whether [341]
Free access — add to your briefcase to read the full text and ask questions with AI
Marshall, J.
At the outset, the question of the liability •of Elihu Colman is of paramount importance. It stands without question on the record that he was the owner of the street-car track at the time of the injury complained of, and had been such for several months prior thereto; that the defective condition of the street existed when he purchased the property; that he then knew of the facts; that the railway company occupied and used the property the same after such purchase as before, but pursuant to an option to buy it back, the particulars of which option were not testified to. The learned circuit judge decided as a matter of law, on such facts, that Colman was not liable for the injury to plaintiff, because the defects in the street were not caused by, nor did they arise ■from, or were they produced by, him. That reasoning hardly meets the facts of this case fully. ' It leaves out the element that Colman continued the defective condition of the street by allowing the railway company to hold under him without any covenant on its part to remedy such condition. "With the added element, the decision has some support by some things said in Fellows v. Gilhuber, 82 Wis. 639, where the awning in front of an hotel was thrown down, partly through defects existing in one of the supporting, posts, whereby a guest at the hotel, standing on the walk, was in[338]*338jured, the hotel being in possession of a lessee, and the defect existing with knowledge of the landlord when the lease was made. It was held that the lessor was not liable, but the decision was put on the ground that there was an agreement in the lease which obligated the lessee to repair. Upon that theory the decision is in accord with much authority in this country and England, but it must be said there is much authority of a very respectable character against it. Whatever is said in the opinion, however, that may be read, to support the proposition that the rule that a landlord who leases dangerous premises, knowing, or with means of knowledge, of such dangers, without any covenant to repair on the part of the lessee, is not liable to the tenant or subtenant holding under the first lessee, or any person having business connection with the property, under the tenant, injured by such dangers, applies to cases arising between the landlord and a mere stranger lawfully in the vicinity thereof, and injured thereby, must be considered as obiter and the decision read as applying only to the facts of the particular case.
The law is firmly established bj^ the great Aveight of authority, that, as between the owner of leased property and a mere stranger, the owner is liable for an injury to the latter, caused by a dangerous defect in the property existing at the time of the lease, unless protected by a covenant binding the lessee to remedy such defects; and there is much authority that he is liable anyway, that is, that he cannot shift the liability for known existing dangers onto the lessee by a covenant to repair. But there is no necessity for discussing the conflict in that regard, in this case, for there is nothing in the record to indicate that the railway company was under any obligation to Colman to repair the defects in the street caused by the railway track. So far as appears from the evidence, the company continued in possession of the property without any agreement other than a mere option to purchase.
[339]*339Authorities which apply to the facts unfavorably to plaintiff are very numerous, and without substantial conflict. We will cite but a few of them. In Conhocton Stone Road v. B., N. Y. & E. R. Co. 51 N. Y. 573, defendant demised premises, in a dangerous condition, and was held not liable for want of notice of the defects at the time of the demise, or thereafter, prior to the injury. In Ahern v. Steele, 115 N. Y. 203, defendants became the owners of a defective pier, subject to an outstanding lease which contained no covenant to repair. The defects antedated the lease. They were created and existed before the property came to the defendants. The court held that defendants were not liable for the injury caused by such defects, though solely on the ground of want of notice. To the same effect are Irvine v. Wood, 51 N. Y. 224, and Swords v. Edgar, 59 N. Y. 28. In Albert v. State, 66 Md. 325, the following instruction given in the trial court was approved, the action being to recover damages sustained by a minor through the death of his parents, caused by a defective wharf occupied by the defendant’s tenant: “If the jury find that the defendant was the owner of the wharf, and that he rented it out to the tenant, and at the time of the renting the wharf was unsafe, and that the defendant knew, or by the exercise of reasonable diligence could have known, of its unsafe condition, then the plaintiff is entitled to recover.” To the same effect are Knauss v. Brua, 107 Pa. St. 85; Cunningham v. Cambridge Sav. Bank, 138 Mass. 480; Dalay v. Savage, 145 Mass. 38; Nugent v. B., C. & M. R. Co. 80 Me. 62.
The rule appears to be very firmly established as above indicated, that under circumstances such as mentioned in the foregoing authorities, there being no covenant to repair or remedy defects on the part of the tenant, the liability of the owner for injuries thereby received turns on knowledge, or reasonable means of knowledge, of the existence of the defects on the part of such owner. Probably no case can be found that more nearly touches this at every point than [340]*340Dalay v. Savage, supra. There the defendant purchased premises abutting on a public way, having a defective coal hole in the sidewalk appurtenant to the premises, which caused the injury. Defendant had a right to the possession, butj instead of asserting it, left the person, in possession who was there at the time of the purchase, as a tenant at will, without any agreement to repair the coal hole. It was held that the defendant was liable.
Further citations appear to be unnecessary. The rule on which they proceed is quite elementary, and may be stated thus: If a person purchases premises which are in a defective condition, with knowledge, or reasonable means of knowledge, of the defects, and then leases the same to another, or allows such other to hold possession of such premises .under such conditions as to indicate permission to continue the defects, and a third person having no connection with such other, without fault on his part, is injured by reason of such defects while rightfully in the vicinity of the danger, such purchaser is liable to respond in damages to such third person for such injury.
Applying the foregoing to this case, it must be held that Colman, by reason of his ownership of the property and knowledge of its dangerous condition when he purchased it and up to the time of the injury complained of, was liable to-the plaintiff. His allowing the railway company to remain in possession, especially without any agreement on its.part to repair the street, did not operate to relieve him from responsibility. As said in Dalay v. Savage, 145 Mass. 38, that the railway company was also liable, is no defense for Colman, who held the title and was the actual owner of the property.
There is nothing in the foregoing inconsistent with what was decided in Fellows v. Gilhuber, 82 Wis. 639, or Dowling v. Nuebling, 97 Wis. 350. In the latter case the contest was .between the landlord and his tenant.
What has preceded leads to a consideration of whether [341]*341Colman was a party “ primarily liable ” within the meaning of the charter of the defendant city, which provides that, “in case of injury or damage by reason of insufficient, defective or dangerous conditions of streets, not included in sidewalks, produced or caused by the wrong, neglect of duty, default, or negligence of any person or corporation, such person or corporation shall be primarily liable for damages for such injury in a suit for the recovery thereof 'by the person sustaining such damages, and the city shall not be liable therefor until all legal remedies shall have been exhausted to collect such damages from such person or corporation.” The words “ primarily liable ” have a very definite and certain meaning. The section in which they are used does not create the liability, nor is there any statute liability on the subject. Toutloff v. Green Bay, 91 Wis. 490; Cooper v. Waterloo, 88 Wis. 433. They refer to the common-law liability that exists against the wrongdoer and renders him liable to the injured person, and over to the city in case' of a recovery against it on the statutory liability, hence the words obviously include all persons liable at common law for the wrong. They would include persons made liable by statute as well, if any such existed.
It is argued that such construction of the statute throws much embarrassment in the way of recovering from municipal corporations in such cases as this, because it requires great caution in order to bring into the first controversy all persons liable for the injury, other than the city, who are so circumstanced as to be liable to indemnify it. That is hardly a sufficient reason for adopting a different construction, even if the language were of doubtful meaning. There is no liability on the part of the municipal corporation at all, independent of the statute. The law creating the right, being in derogation of the common law, is to be strictly construed in favor of the public corporation, not in favor of-the claimant for damages. The section under consideration, [342]*342while it regulates the remedy, bears on the right as well, hence comes within the rule stated. Taken in connection with the statute creating the municipal liability, it makes that contingent on a previous exhaustion of all legal remedies against the persons or corporations whose wrong, neglect of duty, default, or negligence produced or caused the defective condition of the street. It is wholly in the power of the legislature to give the right or take it away, or make it contingent on the performance of such conditions precedent as in the wisdom of legislative power seems best, and without any ground for contending that the- legislation in that regard is unreasonable.
It follows from the preceding, on the undisputed evidence in the case, that plaintiff ought not to have recovered, because of failure to prove performance of the condition precedent, requiring plaintiff to exhaust all legal remedies against the persons primarily liable, before proceeding against the city. Th.e condition was properly pleaded and insisted upon at the trial.
It is contended that the verdict was contrary to the evidence on that subject of contributory negligence. Any discussion of that appears to be unnecessary. Suffice it to say, however, that a consideration of the evidence preserved in the record leads to the conclusion that the question was properly submitted to the jury.
It is further contended on plaintiff’s appeal, that the court ■erred in not limiting the defendant, in making its defense, on the theory that the recovery against the railway company was conclusive on the city as to the injury, the cause of it, the amount of damages, and notice to the city. That was pressed on the attention of this court with much earnestness and learning by the eminent counsel who argued the plaintiff’s side of the case, and many authorities were cited in support of the position, all of which have been carefully considered, and none of which, in our judgment, fits the facts [343]*343before us. The doctrine that where a person is responsible over to another who is sued, either by operation of law or express contract, and such person is duly notified of the pend-ency of the suit and requested to take upon himself the defense of it, the judgment is conclusive against him whether he appears or not, is quite familiar. That is the doctrine which the learned counsel invoked to sustain his contention that the judgment against the railway company is binding on the defendant city. In Boston v. Worthington, 10 Gray, 496, recovery was first had of the plaintiff by the injured party; then such party sued the defendants for indemnity, they having created the danger which caused the injury. They were given notice and opportunity to defend in the first case, but declined to do so. The court held that they were bound by the judgment in such first case. In Littleton v. Richardson, 34 N. H. 179, plaintiff town was sued by a person who was injured by obstructions placed in the highway by another. Such other had an opportunity to defend. Recovery was had'of the city, whereupon it sued such other for indemnity for the loss. There was the same situation in Port Jervis v. First Nat. Bank, 96 N. Y. 550; Lowell v. B. & L. R. Corp. 23 Pick. 24; Robbins v. Chicago, 4 Wall. 657, and several other cases cited by counsel, and many more that might be added, in all of which it was held that the judgment in the first case was conclusive against the defendant in the second. It is clear that to make the doctrine under discussion apply the person first sued must have a right of action over against another for indemnity in case of loss. The conclusive character of the first judgment is only where the person first sued, himself becomes a plaintiff against the indemnitor, to recover over for the loss sustained by being compelled to pay in the first case. Here we are asked to apply it, not in favor of the indemnitee who has paid the loss, against the indemnitor, but against the indemnitee in favor of a person who had a right of action against both the [344]*344indemnitor and the indemnitee. No precedent for that, we may safely venture to say, can be found in the books. Certainly, none was cited by counsel.
The result of the foregoing is that the trial court rightly held that the defendant was not concluded on any question in respect to its liability, by the judgment in the action against the railway company, and e'rred in deciding that Colman was not a party primarily liable within the meaning of the city charter. Therefore both appeals must be decided in favor of the defendant, and the judgment reversed accordingly and the cause remanded for a new trial.
By the Court.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.