Moore v. . Goedel ( 1866 )

Wright, J.

It may be that the exception to the judge’s charge is too general to be available; but as this objection is technical, and I am of the opinion that there was no error in the instructions given prejudicial to the plaintiffs, it need not be pressed.

The injury to the plaintiffs resulted from an overflow of the Groton water that had been introduced into the building of which • they were occupants of the cellar, basement and first floor. This overflow occurred at night, from water fixtures in the third loft of the building, and flooded to some extent the plaintiffs’ premises, injuring their goods. The firm of William D. Cromwell & Co. were the lessees and occu pants of all the building from the first floor upward. The defendants were- in the partial occupation of- the third loft, under an agreement with Cromwell & Co., but not in the exclusive possession of any part of it. They had the privilege of storing goods and doing business upon a portion of the third loft, but in entire subordination to the control of Cromwell & Co. They had no right to any key to any part of the premises, and no right of access to ány part , until after Cromwell & Co. had entered in the morning, and had to leave before Cromwell & Co. left at night. Ho portion of their occupation was inclosed, and there was unobstructed access on the part of Cromwell & Co. and their employees to every part of the premises occupied by them.

To entitle the plaintiffs to a recovery, it was necessary for them to have shown that the parties sued caused the water to overflow their premises. . Had the defendants been in the exclusive possession of the loft in which the closet and washbasin, from which the overflow came, were located, it would, probably, have been sufficient prima fade to have proved the injury and where the overflow occurred. In-such a case, where the occupation and right to use the water fixtures is exclusive, the party is responsible for their proper use and proper care, and liability attaches on proof that negligence has occurred and damage has ensued. But that was not this case. Cromwell & Co. were the tenants of the premises in which the water apparatus was situated. They gave to the defendants only a qualified possession of a part, continuing themselves to have access to the whole, and. retaining the control, and actually claiming and exercising, day by day, the final supervision of the premises after the defendants had left at night. The latter had their permission to- use the water-closet and'faucets on the end of the loft towards Park place, from which the overflow came, but the control, management and care thereof was in Cromwell & Co., as tenants of the premises. Tinder such circumstances, the defendants could only be held liable upon proof that their negligence, or that of their employees, caused the mischief complained of. The judge was, therefore,, right in his instruction to- the jury that, before finding a verdict for the plaintiffs, they must be satisfied that the negligence of the defendants or their servants caused the injury. Indeed, instead of doing any injustice to the plaintiffs#in this respect, I quite concur with the court below, that, in view of the proof, a peremptory instruction to the jury, that the plaintiffs were not entitled to recover, would have been proper. All that the plaintiffs showed was, that the flow was from a water-closet or faucet connected with the Croton water, in that part of the third loft which the defendants occupied in a limited way, and that it resulted from the use of the water-closet, or carelessly leaving open the faucet underneath the wash-basin, The proof was uncontradicted and explicit that neither the water-closet nor the faucet underneath the wash-basin had ever been used by the defendants. As to the water-closet, for aught that appeared, the derangements which produced the flow from it might have existed before the defendants went to the store; at least, there was no testimony connecting them with the disarrangement of its valve, or the stoppage in the waste pipe. The defendants used the wash-basin, but all the water used was got from the loft below. They nor their employees ever used the faucet, or ever attempted to get water from it. Yet, with this uncontradicted testimony, connected with the facts that Cromwell & Co. had control and care of the fixtures, and that they were at all times accessible to them and their employees, the judge submitted the question to the jury, whether the .defendants, by themselves or their servants, caused the water to overflow the plaintiffs’ premises. The plaintiffs furnished no proof whatever that they did, but, on the contrary, the proof- showed affirmatively that they did not. There was, in truth, no sufficient evidence to warrant the jury in finding a verdict for the plaintiffs, on the ground that the defendants’ negligence caused the injury; and had they found such a verdict, it would have been the duty of the court to have set it aside.

The other exceptions of any moment relate to the effect of the undertaking of the plaintiffs to take charge of the Groton water' pipes in the cellar, and see that the water was shut off at night.

The plaintiffs sought -to recover compensation for an injury which their own negligence contributed to bring upon them. The main cock, intended as a means of shutting off water from the whole building, was upon their premises and under their control. Cromwell & Co., to whom the defendants were a species of sub-tenants, had experienced the danger of overflow in the lofts, having suffered themselves from an accident of that kind shortly aftér they went upon the premises. They became uneasy about it, and were in the habit of sending down and shutting off the water before leaving their premises at night. This practice continued until the plaintiffs' objected to their employees coming upon their premises for the purpose; whereupon one of the plaintiffs (Hr. Stowell) was seen on the subject, and told that Crom-. well was uneasy about the water, and wanted it shut off at night, when Stowell said he would see to it .and. have it turned off himself. They neglected to take charge of and do what they agreed to do, and what they had prevented the tenants of the lofts themselves from doing, and ask damages for the injury that they sustained in consequence of such neglect. They recognized the right' of Cromwell & Co. to fesort to their premises to shut off the water at night, and the propriety of having it done; the omission of Cromwell & Co. to do it (which would have prevented the whole injury complained of) was by their express request, and that request was acceded to upon the ■ express promise of the plaintiffs themselves to see that it was done; and negligently omitting to do the very thing which, but for their agreement, the tenants of the lofts would have done themselves, an overflow-ensues, and they are seeking compensation. I quite concur with the court below, that, after agreeing with the tenants of the lofts to see to it, and have the water turned off at night, if they would forbear to come on their premises, to do for them what was a sure and adequate protection against any possible overflow of the water, and which, if done, rendered no precaution on the part of the tenants óf the lofts necessary, it would be gross injustice if the plaintiffs could neglect to do what they thus agreed to do, and ask damages for the injury which they sustain in consequence.

The whole case on this point, then, was just this: Cromwell & Co., the tenants of the lofts, for their own protection, were exercising the right of cutting off the water from their premises.at night. The cut-off (a stop-cock) was in the cellar of the plaintiffs; and they were in the habit of sending down and shutting off the water every night before leaving their premises. The plaintiffs at length objected to their going through' or coming on their premises for the purpose; but expressly promising and agreeing to shut it off at night themselves. They omitted to do it, and an overflow in the lofts ensued, by which they were injured. The judge instructed the jury, in substance, that if it was the common understanding between the tenants of the lofts and the plaintiffs, well understood and acted' upon between them, that the plaintiffs should shut off the water in the basement at night, and if the plaintiffs neglected to do it'on the occasion in question, then their carelessness or negligence contributed to the loss; and both parties being in fault, the .plaintiffs could not recover. There was no error in this, but, in truth, the charge might have been more strongly against the plaintiffs. The plaintiffs had no right of recovery if their negligence contributed to the loss, and that it did so was apparent from the úncontradicted evidence. The damage was from an overflow of water. They had control of the main cock, intended as a means of shutting off water from the building; they neglected those means; they promised to shut off the water at night (preventing the tenants of the lofts from doing it themselves), and neglected to do so. Their negligence not merely contributed to the loss, but it was occasioned thereby.

It is not important to consider the exception to the instructions of the judge in respect to the rule of damages, as that question was not reached by the jury.

I think the judgment should be affirmed.

All the judges concurring, judgment affirmed.