Kohn v. Lovett , 44 Ga. 251 ( 1871 )

Lochrane, Chief Justice.

This Avas an action brought by Lovett, to recover damages from Kohn. The jury found for the plaintiff $2,000 00, and the Court overruled a motion made for a new trial upon several grounds in the case.

It appears that Kohn was the owner of a storehouse in the city of Rome, that in the rear of the house there Avas an excavation dug out to give light to the cellar, some six or seven feet wide, ten feet deep, and running back across the whole width of the house. Lovett, being aroused by an alarm of fire, went down to it in the house adjoining the store of Kohn, and going through Kohn’s store from the front, he went out of the back door, and, turning off some plank, fell into the excavation and was personally injured. This excavation was some seventy-five or one hundred feet from the street or highway. Was Kohn liable to Lovett for damages under the facts? For this question settles the balance of the questions presented by the record. We have examined the various authorities upon the subject of damages, and recognize the learned labor expended upon the question in the brief of the defendant in error. But in the view we take of this case, it is compressed into a short compass; the principle of law that controls it is plain and easily understood. And we premise by saying, if the act is actionable, the right of suit lies against the owner of the property, and not the lessee or tenant. For the tenant's liability arises out of some fault or neglect of his, and uot for the original defect existing at the time of his lease.

The naked question of this case is, had Kohn the right to dig in rear of his store an excavation to give light into his cellar ? If he did, and the act was the exercise of a lawful right, he is not liable for damages. If he did not have the right, and it was an illegal exercise of his dominion over his own property, he is liable. Whether he did or did not have the right depends upon other circumstances. In the first place, a man has no right to dig a pit on his own land so near a public highway that a passer-by may be injured ; he may not use his own property so as to injure, or cause, by his negligence, injury to others. These principles are settled. Does a cellar light off a street and not near to a highway come within the principle ? Kohn would be liable if the act was not lawful, and he would be still liable if the act was done. with negligence, so that passers-by might be injured. After consideration of the authorities, we are of opinion that Kohn had the right to dig this opening in the rear of his store, and that its being off the street some one hundred feet, and not near to any pass-way, where it would have been dangerous, under ordinary circumstances, to persons passing, he was not guilty of actionable negligence in the premises. And the fact that Lovett went down to aid in extinguishing a fire does not affect the question. He went through the store from the front door, and unfortunately fell into the opening. But the right of the owner of land cannot be abridged by accidents which may happen. A man may dig upon his own soil away from a highway, and his right is not subject to abridgment by parties happening to go out of their way into his farm and falling into it. And the great right which every man has to be protected in life and limb, and which makes every one who, culpably, by his negligence, deprives him of these blessings, liable to make compensation in damages, does not enhance and is not infringed by the absolute rights which every man, upon his own land, has to make such improvements as he may please to have, provided they are not near a highway or place where parties passing by may, with ordinary care, get out of the way and be injured. Under the facts here in the case at bar, we think that he placed the opening, walled up, behind his store, for useful and legitimate purposes. He had a right to do what he did, and Lovett, going down there in the manner he did, and running through the store, has no right of action. This opening occupied the same condition legally that a trap door open to his cellar would, into which, if going through, he fell, and in regard to which it would be damnum absque injuria.

And we therefore hold the Court erred in his charges to the jury, and in refusing a new trial, and we reverse the judgment upon that ground.