CHAPTER XXIX.

TUMBLE-DOWNS.

As the elevator carriage in a New York city hotel was one day nearing the upper story, the chain gave way, and the carriage fell to the basement. It struck and killed the engineer, who was, unhappily, just then underneath. In barbarous life. man is tolerably secure against fatalities from anything falling upon the top of his head; but civilized arts have given rise to a variety of perils of this nature. The balloons, elevated railways, and lofty buildings and scaffoldings above, and the mines, wells, cellars, and tunnels beneath, are rapidly transforming Terra into a three-story habitation; and modern law is often obliged to take cognizance of what, until a better technical term is introduced, may be called " tumble-downs." The law of the land stands ready to redress any carelessness or negligent infraction of the cranium by an award of damages; yet, when such suits are brought, too often one of the familiar defences "nobody to blame" or "his own fault" defeats the claim. In other words, the plaintiff recovers if defendant was negligent and plaintiff was not so. Defendant wins the suit if he can show either that he was not in fault or that plaintiff himself was careless.

In perhaps a majority of cases the circumstances themselves show, without any particular argument, that the proprietors of the building or mine, etc., were in fault.-In Chicago, one day, a lady was passing along the sidewalk, underneath a swinging scaffold against a building upon which some workmen were putting up a new sign, and just as she came beneath a hammer slipped off the platform and struck her upon the head. She recovered $500 damages. The court said it was gross negligence for the

workmen to use tools on such a staging over a city sidewalk without placing an edge or railing around it to keep their tools from slipping off.*-In Liverpool, as a pedestrian was passing a large flour-store, a barrel of flour fell upon him from one of the upper stories. On the trial of the action which he brought against the proprietor, none of the witnesses knew, or none would tell, how the barrel came to fall, and the proprietor's counsel argued that he must go free, because there was no proof that he was to blame. But the judges overruled this. They said it was not the plaintiff's duty to ascertain how the barrel came to roll out of the window. Owners of barrels in storerooms must take care they do not roll out. Whoever lets things fall from housetops upon travellers in the street below must explain how he came to do so, or pay damages.-The same decision was made in a London case, where an inspector or examiner from the Customhouse was walking about London docks attending to his duties, and came underneath a crane, and six bags of sugar fell upon him. The court said he need not show how they came to fall; the men who dropped them might do that.

Down in a coal-mine is a good place for rocks to fall on one. An Illinois boy was killed in this manner, and his father recovered nearly $1200 damages, because the shaft down which the bit of rock fell was not properly fitted and guarded to prevent such accidents.§-Snow and ice are permitted to fall from roofs of houses upon the sidewalks much oftener than they ought. It is against the law, and renders the owner of the building liable to any person injured. In a New York case of this sort, the occupant of a dwelling directed his servant to shovel the snow off his roof; the servant asked a companion to help him, who shov

* Hunt v. Hoyt, 20 Ill. 544.

Byrne v. Boadle, 33 Law J. Exch. 13.

Scott v. London Dock Co., 34 Law J. Exch. 220.

§ Quincy Coal Co. v. Hood, 77 Ill. 68.

elled pieces of ice off the front; one of which struck Warner, passing along the sidewalk, and killed him. The housekeeper thought he was not liable for this, because neither he nor his servant was careless; but the court said that, as he ordered it done, he was responsible for the whole job; and he had to pay $3500.*

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But although, in these cases, the fault on the part of the defendants is taken for granted, as it were, yet it is an essential fact. And if the circumstances are such as to show that the sons sued were not in any respect to blame for the casualty, they will not have to pay damages. This is illustrated by the story of what befell Miss Kendall in Boston. A few years ago, when the Grand-duke Alexis made his noted visit to this country, the city of Boston gave a great entertainment in his honor. The Common Council appointed a committee of arrangements; and this committee engaged the Music Hall and issued tickets for a conOne of these tickets came to the hands of Miss Kendall, and she attended. Her seat was just under a balcony which was built around the upper part of the Hall; and this balcony bore various architectural ornaments, one of which was a bust of Benjamin Franklin. The printed programme requested the audience to rise when Old Hundred should be sung. The immense crowd arose accordingly, Miss Kendall among them. At that moment, from some cause unknown, the bust of Franklin fell upon her and broke her shoulder. She brought two suits, one against the city corporation, and one against the gentlemen of the committee. Apparently her lawyers had read so many cases in which fault on the part of the owners of the property has been taken for granted from the mere fact of the tumble-down that they took that for granted upon the trial of these suits. They supposed that the difficult question would be whether the city or the committee-men must pay. But the court decided against

* Althorf v. Wolfe, 22 N. Y. 355.

both suits on the ground that neither city nor committee was negligent. The judges said that in ordinary cases, such as those already described in this chapter, the proprietors of a structure, etc., are supposed to be in fault when any part of it falls, unless they can prove the contrary, because they are responsible for the manner of constructing it. But in this instance neither the city nor the committee had anything to do with fastening the bust of Franklin in its place. They did not own the building, nor put up the bust, nor give orders to have it done. They simply hired a building which every person supposed to be suitable and substantial, and gave Miss Kendall an invitation to attend the concert. As far as they were concerned, the injury was a pure

accident.

Upon the other hand, any carelessness or fault of the injured person contributing to the casualty defeats his action for damages. There have been several instances of this. One was an elevator case. The elevator in question was in a Massachusetts factory, and the time was ten years ago, before the recent improvements. The elevator was operated by an attendant stationed in the attic, who was accustomed to let it down, on signal, as far as it was wanted. A workman who wished to be carried up signalled from below, and naturally put his head within the hoistway to watch the progress of the carriage downward, when the chain broke, and the descending carriage struck his head. In his lawsuit for damages the judge decided against him for carelessness in standing underneath, and not looking more intently, so as to keep out of the way. But the Supreme Court overruled this; they said the man's conduct was not necessarily careless.*The principle has more recently been explained again with reference to a case of falling down the hatchway of an elevator. The place of the casualty was the building occupied by the Portland Publishing Company, in Portland, Me. The

*Hackett v. Middlesex Manf. Co., 101 Mass. 101.

time was midnight, in September. The experimenter, or victim, as one pleases to regard him, was an advertiser who desired to procure a notice inserted in next morning's paper, notwithstanding the late hour. The counting-room, upon the ground-floor, was closed for the night, and the lights in the stairways and halls above had been extinguished. He began groping his way up-stairs to the composing-rooms in search of some obliging sub. who would insert his tardy notice, when he came, unawares, upon the door of the elevator-way, which had been carelessly left open; he fell through, and was badly hurt. He sued the proprietors of the paper, claiming that leaving the door open and the hall dark was a neglect of their duty to the public. The court, however, said that while it may be very true that proprietors of a shop, office, or newspaper-room are understood to give a general invitation to customers to visit it, and are bound to keep the premises in good order, yet this invitation is understood as applying only during business hours. Shutting up the rooms and turning out the lights were some notice to the general public that business was over for the day, and that their visits were no longer expected. Besides, if the proprietors were negligent, that did not excuse the advertiser for his carelessness. Finding no light, he should have turned back and procured one, and might have complained afterwards of the neglect. By undertaking to grope through a dark, unknown passage-way at midnight, he took the risk of the accidents that might befall him. In short, "it was his own fault," which is the brief answer the law gives to many a suit for damages.*

* Parker v. Portland Publishing Co., 9 Cent. L. J. 108.