whether his property be managed by his own immediate servants or by contractors or their servants. This rule explains all the cases except... The King v. Pedley. That was an indictment which charged the defendant with ereeting, near certain public streets and dwelling-houses, two buildings called necessary-houses, for the common use of divers persons residing in and frequenting Diamond Alley, and did also make and cause to be made a certain open sink for the reception of ordure, &c., and, on divers days, &c., divers persons had resorted to and used and still did resort to and use the said necessary-houses, and did place and leave in the said sink large quantities of ordure, by reason of which, &c. (stating the nuisance resulting). . . . The jury, under Lord DENMAN's direction, found the defendant guilty, subject to a motion to enter a verdict of acquittal. . . Littledale, J., seems to have rested his judgment on the principle, that the landlord was not to let the land with the nuisance upon it; and he proceeds: "Here, the periods are short, so there has been a reletting; and that has taken place after the user of the buildings had created the nuisance." He therefore assumes that there was an existing nuisance at the time of the letting, which had not afterwards been removed. To his judgment, proceeding on that ground, we entirely assent; and probably Lord DENMAN meant the same thing, when he said that the receipt of rent was upholding and continuing the nuisance. TAUNTON, J., after adverting to the doubt as to the premises being demised, or remaining in the defendant's possession, in which case he would certainly have been liable, proceeds to say, that the landlord was bound to exact from his tenants an obligation to cleanse, with a right of entry in their default; and that he was at all events liable. To this we cannot subscribe, notwithstanding the unfeigned respect which we feel to be due to any opinion expressed by that very learned judge; for, it appears to us, that, if a landlord lets premises, not in themselves a nuisance, but which may or may not be used by the tenant so as to become a nuisance, and it is entirely at the option of the tenant so to use them or not, and the landlord receives the same benefit whether they are so used or not; the landlord cannot be made responsible for the acts of the tenant: and a fortiori he would not be liable, if he had taken an obligation. from the tenant not to use them so as to create a nuisance, even without reserving a right to enter and abate a nuisance, if created. The judgment of WILLIAMS, J., appears to proceed on the ground that the landlord had it in his own power to remove the nuisance; for he refers to the admission said to have been made by him, that he was bound to do the cleansing. If, then, The King v. Pedley is to be considered as a case in which the defendant was held liable because he had demised the buildings when the nuisance existed; or because he had relet them after the user of the buildings had created a nuisance; or because he had undertaken the cleansing and had not performed it; we think the judgment right, and that it does not militate against our present decision. But, if it is to be taken as a decision that a landlord is responsible for the act of his tenant in creating a nuisance, by the manner in which he uses the premises demised, we think it goes beyond the principle to be found in any previously decided cases; and we cannot assent to it. For the reasons already given, we think that the verdict must be entered for the defendant on the plea of not guilty, as well as on the issue of not possessed, which refers to the time when the nuisance was created. Rule accordingly. 465. CLIFFORD v. ATLANTIC COTTON MILLS 146 Mass. 47, 15 N. E. 84 TORT for personal injuries occasioned to the plaintiff by the fall of snow from a building. At the trial in the Superior Court, before HAMMOND, J., without a jury, there was evidence that the defendant owned a block of dwelling-houses on Canal Street in Lawrence; that the block was three stories high, constructed with a steep slate roof, slanting towards the sidewalk, the ridgepole being parallel therewith, and that the roof had no protection or railing to keep the snow from falling upon the sidewalk; that the plaintiff was going along the sidewalk, in the exercise of due care, when a large quantity of snow slid from the roof of one of the houses upon her, and greatly injured her; and that a tenant occupied the house under a written lease which covered the whole house, and provided (so far as it was material) that the lessee should not "make, nor suffer to be made, any alteration in the same, but with the assent in writing" of the agent of the defendant, and "that the said agent, or any one appointed by him for the purpose, may, at any time, enter into said premises to repair the same, or to ascertain if the same are properly used." The judge ruled that the plaintiff could not maintain her action, and found for the defendant. The plaintiff alleged exceptions. J. M. Stearns for the plaintiff. D. Saunders and C. G. Saunders, for the defendant. HOLMES, J. This is an action for personal injuries done to the plaintiff by the fall of snow from the roof of the defendant's house into the highway. The whole house was let at the time to a tenant. The only difference between this case and Leonard v. Storer, 115 Mass. 86, is, that there the tenant had agreed to make all needful repairs, while in the case at bar there was no contract on either side, but the landlord reserved the right to enter the premises to repair the same, or to ascertain if the same were properly used, &c. This difference cannot affect the result, because the damage was not caused in either case by a want of repairs, but by the original character of the structure, and therefore the presence or absence of a covenant to repair has nothing to do with the question, and because the landlord's reservation of a right to enter, in the case before us, did not include the control of the roof, which the landlord was held to have had in Kirby v. Boylston Market Association, 14 Gray, 249; Shipley v. Fifty Associates, 101 Mass. 251, 254. . . . There is no doubt that a man sometimes may be liable in tort, notwithstanding the fact that the damage was attributable in part to the concurrent or subsequently intervening misconduct of a third person. Elmer v. Locke, 135 Mass. 575, 576; Lane v. Atlantic Works, 111 Mass. 136 [ante, No. 459]. . . . But the general tendency has been to look no further back than the last wrongdoer, especially when he has complete and intelligent control of the consequences of the earlier wrongful act. See, for example, 111 Mass. 141; Hastings v. Stetson, 126 Mass. 329 [ante, No. 455]. . . . In the case of landlords who have given up to the tenant control of the premises in the matter out of which the damage arises, this Court has never gone further than to hold them liable when the use from which the damage or nuisance necessarily ensues was plainly contemplated by the lease. . . . It is true, that, if the nuisance exists when the premises are let, the landlord can be held, although the tenant may be liable also to the person injured; for the landlord is taken to have contemplated the premises remaining in the condition in which he let them. . . . But the Courts have differed when the nuisance existing at the time of the lease was due to want of repairs, and the tenant had covenanted to make repairs. Pretty v. Bickmore, L. R. 8 C. P. 401. . . . And the landlord will not be liable for the use of the premises in such a way as to do harm, merely because there was a manifest possibility of their being used in such a way. The liability will stop with the tenant whose intervening wrong is the immediate cause of the damage. Mellen v. Morrill, 126 Mass. 545; Rich v. Basterfield, 4 C. B. 783 [ante, No. 464]. . . . In such cases it cannot matter whether the wrong on the part of the tenant is an act which makes the premises a nuisance, or an omission which allows them to become so. It is as much his duty to act in the latter case as it is to abstain in the former. In either, as against the public, the landlord, unless he has assumed the duty himself by covenant, has a right to rely upon the tenant's managing the premises in his occupation in such a way as to prevent their being a nuisance. The defendant's house was not a nuisance in itself. If it was, half the householders in Boston are indictable at the present moment. It was certain to become so at times by the mere working of nature alone, unless the tenant cleared the roof, or took other steps to prevent it. But, as far as appears, the tenant could have done so by using reason able care. If he could, it was his duty to do so, and the landlord was not liable, for the reasons which we have stated. Exceptions overruled. 466. CUNNINGHAM v. ROGERS. (1909. 225 Pa. 132; 73 Atl. 1094.) Potter, J.: The claim of the plaintiff in this case is based upon the alleged ownership by the defendants of the structure which fell, but no sufficient evidence in support of this claim was offered. "As regards the liability of landlords to third persons, it may be taken as a general rule that the tenant, and not the landlord, is liable to third persons for accident or injury occasioned to them by the premises being in a dangerous condition; and the only exceptions to this rule appear to arise where the landlord has either (1) contracted with the tenant to repair, or (2) when he has let the premises in a ruinous condition, or (3) when he has expressly licensed the tenant to do acts amounting to a nuisance." 2 Woodfall on Landlord and Tenant (1st Am. Ed. 1890) *735. . . . Upon the whole record it is apparent that the responsibility for the condition of the grandstands in this case rested upon the tenant. 467. GLYNN v. CENTRAL RAILROAD COMPANY SUPREME JUDICIAL COURT OF MASSACHUSETTS. 1900 175 Mass. 510, 56 N. E. 698 TORT for personal injuries occasioned to a brakeman employed by the New York, New Haven, and Hartford Railroad Company, while at work upon a train of that road at Stonington, Connecticut, a station twelve miles east of New London. Trial in Superior Court, before AIKEN, J., who, at the request of the defendant, directed a verdict for the defendant; and the plaintiff alleged exceptions. G. W. Anderson (S. A. Fuller with him), for the plaintiff. R. Thorne (of New York) (C. F. Choate, Jr., with him), for the defendant. HOLMES, C. J. This is an action for personal injuries. The plaintiff was at work for the New York, New Haven, and Hartford Railroad Company, at Stonington, Connecticut, and was engaged in coupling a train to a car belonging to the defendant when his sleeve was caught by a bolt projecting from the deadwood of the car and his hand was crushed. We assume that the car was in such condition that (apart from the question of notice) it would warrant a finding that the defendant was liable, had the car been in its possession and the plaintiff in its employ. We assume further without deciding, that the evidence warranted a finding that the car had come from the possession of the defendant recently, and in the same condition as that in which it was at the time of the accident. But nevertheless we are of opinion that the judge who tried the case was right in directing a verdict for the defendant. There was no dispute that after the car had come into the hands of the New York, New Haven, and Hartford Railroad, and before it had reached the place of accident, it had passed a point at which the cars were inspected. After that point, if not before, we are of opinion that the defendant's responsibility for the defect in the car was at an end. There is more obscurity than there ought to be, perhaps, upon the limits of liability in general. The fact that the damage complained of would not have happened but for the intervening negligence of a third person has not always been held a bar; although negligent conduct, so far as it is tort, is unlawful in as full a sense as malicious conduct, and although ordinarily even a wrongdoer would not be bound to anticipate a wilful wrong by a third person. See Elmer v. Locke, 135 Mass. 575, 576, and cases cited in Clifford v. Atlantic Cotton Mills, 146 Mass. 47, 48 [ante, No. 465]; Englehart v. Farrant (1897), 1 Q. B. 240; compare Hayes v. Hyde Park, 153 Mass. 514, 515, 516. But when a person is to be charged because of the construction or ownership of an object which causes damage by some defect, commonly the liability is held to end when the control of the object is changed. Thus the case of Clifford v. Atlantic Cotton Mills, just cited, shows that the mere ownership of a house so constructed that its roof would throw snow into the street, and therefore threatening danger as it is without more, whenever snow shall fall, is not enough to impose liability when the control of it has been given up to a lessee who, if he does his duty, will keep it safe. In the case at bar the car did not threaten harm to any one, unless it was used in a particular way. Whether it should be used in a dangerous way or not, depended not upon the defendant but upon another road. Even assuming that the car had come straight from the defendant at Harlem River, the defendant did no unlawful act in handing it over. Whatever may be said as to the responsibility for a car dispatched over a connecting road before there has been a reasonable chance to inspect it, yet after the connecting road has had the chance to inspect the car and has full control over it, the owner's responsibility for a defect which is not secret ceases. Upon the same principle, that commonly when a new control comes in the former responsibility is at an end, a vendor who makes no representation is not liable to a remote purchaser of the article sold, for damage done by a defect in it. Davidson . Nichols, 11 Allen, 514, 518; Losee v. Clute, 51 N. Y. 494; Curtin v. Somerset, 140 Penn. St. 70. It is recognized in Clifford v. Atlantic Cotton Mills, that the rule is different when the use from which the damage ensued plainly was contemplated by the lease. . . . In Heaven v. Pender, 11 Q. B. D. 503, 515, it was considered that the use not only was contemplated but was invited. . . . But contemplation means a good deal more than simply recognizing a probability. In Sowell v. Champion, 2 Nev. & P. 627, 634, it was held that an act generally lawful, such as placing a writ for execution in the hands of an officer, was not made unlawful by a full persuasion or even knowledge that the officer was likely to execute it in a place which might and did turn out to be out of his jurisdiction. The officer had an unfettered right of decision, and it was his lookout to see |