Barrett v. Lake Ontario Beach Improvement Co. ( 1903 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The appeal from the order of reversal permits of our reviewing any of the questions of law, which were before the Appellate Division. (Albring v. N.Y.C. H.R.R.R. Co., 174 N.Y. 179.)

Upon the facts which have been stated, the first question for our consideration, and one which is much dwelt upon by the defendant respondent, is whether, if the accident complained of is attributable to negligence in the construction of the structure of the platform, to be used in connection with the toboggan slide, the defendant can be held to have been responsible. While, as a general rule, a lessor, in the absence of any agreement, or of fraud, is not liable to the lessee for the condition, or tenantable use, of premises demised, (Sutton v. Temple, 12 M. W. 52; Jaffe v. Harteau, 56 N.Y. 398), that rule is subject to exceptions. If the premises which are rented are in such a dangerous condition, as to constitute a nuisance at the time of the renting, the lessor remains liable for the consequences of the nuisance, notwithstanding that his lessee may also be liable. (Swords v. Edgar, 59 N.Y. 28.) If the premises are rented for a public use for which he knows that they are unfit and dangerous, he is guilty of negligence and may become responsible to persons suffering injury, while rightfully using them. Such instances would be where he lets a warehouse, so imperfectly constructed that the floors will not support the weight necessarily upon them; or where he lets a building for public amusements, or exhibitions, or other public purposes, and its construction is so unsafe, structurally, as to be the cause of injury to any one. (Francis v. Cockrell, L.R. [5 Q.B.] 184, 501; Fox v. Buffalo Park, 21 App. Div. 321; affirmed,163 N.Y. 559; Edwards v. N.Y. H.R.R. Co., 98 N.Y. 245.) This liability for injuries, attributable to the unfit condition of premises, which have been let for a specific purpose, rests upon negligence; that is to say, upon the omission of a duty to use due care in their erection, or construction. The law holds the lessor responsible, not upon any contractual obligation, but because of the delictum. If, as claimed in this case, a person has erected a structure and designed it for the use of the public, which was either structurally defective, or which was faulty, in failing to afford what, in the judgment of reasonable men, would be a proper and adequate protection to persons using it, then he has incurred the risk of being made responsible for occurrences resulting in injury to any one by reason of the faulty construction. The contention, in this case, is that the toboggan structure was unsafe for the specific use for which the defendant intended and let it to Briggs and the question is, simply, whether the platform was built in so reasonably safe a manner, as to prevent the occurrence of accidents, which men, of ordinary prudence and knowing the nature of the public use to which it was to be put, might have foreseen as possible. There is a difference between this case and other cases in this, that the defect in question was not in the supports of the structure, but in the manner in which the railing around the platform was constructed; which rendered it possible for a person to fall through it to the ground. The difference, however, is not one which affects the doctrine of the lessor's responsibility; for, obviously enough, the essential principle of the doctrine is the omission, or the neglect, of a duty in preparing a structure, to be put to a particular public use, to make it reasonably fit, or safe, for that use.

In my opinion, the defendant, having built the structure for the amusement, or entertainment, of the public, impliedly, warranted that it might be used with such safety to the person as could reasonably be demanded.

If, then, the defendant could be made responsible for any neglect in the construction of this toboggan slide, the question, then, presents itself whether, upon the evidence, the court could say that, as matter of law, the railing constructed about the platform was a reasonably sufficient protection to the persons using it. However imperfectly described the occurrence of this accident, it is, certainly, evident that the railing was not, as it existed, sufficient to prevent a person falling through its openings. Whether the deceased slipped, or whether, stumbling, he lost his balance, when in the act of making use of the slide, is not material; because, in either event, the particular form of sport to be indulged in rendered slipping, or stumbling, a reasonably possible occurrence. All persons were invited, upon the payment of an entrance fee, to make use of this structure and the amusement provided for involved some risks. These risks attending an amusement which was prepared to allure the public for their emolument, the proprietors, or lessors, were bound to anticipate and to protect against, so far as they were not necessarily incidental thereto. A stricter measure of duty was involved, in preparing such a structure to induce the public use, and it was required that the risks should be minimized, to the extent that reasonably prudent men might forsee the necessity of doing so. The risk of falling from the platform may have been apparent to persons using it; but those persons had the right to assume that they went there without incurring any risk which might have been reasonably anticipated by the proprietor of the concern. They came there by invitation and with the right to believe that every reasonable care had been taken for their safety, in the erection of the slide. That an accident of the same kind had never before happened furnishes no ground of defense, if it might, in reason, have been anticipated. (Cleveland v. N.J. Steamboat Co., 125 N.Y. 299; Donnelly v.City of Rochester, 166 ib. 315.)

In my opinion, the situation being such that a fall from the platform was a possible occurrence to the majority, if not to all, of the persons who used the toboggan slide, a question of fact was presented upon the evidence whether the platform structure had been constructed with that due care, which, in the judgment of prudent men, in view of the purpose, should have been exercised by the defendant. That question was for the jury to answer.

I think that whether the deceased was free from contributory negligence was properly left to the jury. The circumstances, under which the deceased was seen to fall, furnish no inference that he was careless. He was a lad of some fifteen years of age, concededly bright and active, and he was engaged in doing something to which he was expressly invited. The court could not hold, as matter of law, under the circumstances, that he had contributed to the result.

I think that the order of the Appellate Division should be reversed and that judgment should be ordered to be entered upon the verdict for the plaintiff, with costs in all the courts.

PARKER, Ch. J., O'BRIEN, BARTLETT, HAIGHT, MARTIN and WERNER, JJ., concur.

Order reversed, etc.