Lederer v. Fox ( 1909 )

Mr. Justice Freeman

delivered the opinion of the court.

Objection is made in behalf of the plaintiffs to the admission in evidence of certain leases, and the admission of evidence tending to show that employes of the landlord and of other tenants visited the various floors of the building. "We deem it unnecessary to dwell upon these objections. The questions involved in this case have been fully considered in Chicago Telephone Co. v. Com. Union Assurance Co., 131 Ill. App. 248. In that case it was “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 contention in the case before us is of like character. In that case we said (p. 252): “If a tenant is in exclusive control and occupation of a wash room in which an overflow occurs in consequence of the tenant’s negligence or that of its employes having free access to" such wash room, then it is not the landlord but the occupant of the premises who must be deemed responsible. Warren v. Kauffman, 2 Phila. 259.” It is no doubt true in the case at bar that the absence of an overflow or waste pipe in connection with the faucet in question was a condition for which the landlord was responsible. But the damage in this case was caused primarily by negligently permitting water to run from the faucet and flood the plaintiffs’ premises. This and not the absence of a waste pipe was the proximate cause of the damage.

We held in the case above cited that where the evidence tended to show the damage was caused by an overflow of water from a wash room exclusively occupied and controlled by the defendant, the law raises a presumption that the damage was due to the negligence of the defendant, and that the burden was on the defendant to show by a preponderance of the evidence that the injury was not due to such negligence. In the case at bar there is evidence tending to show that the water was not turned on by any of the employes of the defendants. But the undisputed evidence also shows that other persons in the building had unrestricted access to the defendants’ premises and to the faucet from which the water flowed that caused the damage. The premises where the faucet was situated were exclusively occupied and controlled by the defendants. There is no evidence tending to show how the faucet • was opened, but under the circumstances the law raises a presumption that the defendants failed to exercise due care to prevent its use by its employes or others in such a way as to cause the damage complained of, and the burden of proof is upon the defendants to show by a preponderance of evidence that the damage was not due to such negligence. As in the case above cited, so here, the burden was we think upon defendants to disprove the inference of negligence arising from its control of the faucet and the opportunity of access to it afforded outsiders. It was the clear duty of the defendants so to control the use of their premises and appliances as to prevent injury to other tenants of the building from a negligent use of such premises and appliances.

It is argued in behalf of the defendants that the faucet without a drain pipe was a nuisance and that the premises having been leased with a nuisance upon them, by means of which the injury complained of was inflicted the owner or landlord, and not the defendants, is liable. We cannot agree with this contention. The faucet itself cannot be deemed to have been a nuisance. If properly used and guarded the faucet was not of itself objectionable. Whether a nuisance or not depended on the manner in which it was used.

Nor do we concur in the contention that the defend- . ants could not place locks on its premises under the provisions of its lease without making “ alterations, amendments or addition to the building,” prohibited by the lease. If such contention could be deemed valid, the defendants nevertheless were under no obligation to become tenants and occupy premises in which they could not protect themselves, their premises and property by such ordinary precautions. They assumed control of the premises under the lease and assumed therewith the obligations which such control and possession involved.

For the reasons indicated the judgment of the Municipal Court must be reversed and judgment will be entered here in favor of the plaintiffs for $313.85 agreed upon as the fair market value of the wall paper belonging to the plaintiffs stored on their premises and damaged.

Reversed and judgment here.