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BICKNELL, GIBSON & TRASK, for respondent.

CHIPMAN, C. Action for personal injury. Jury trial was waived. The trial was by the court, and defendant had judgment. The appeal is from the judgment, and from the order denying plaintiff's motion for a new trial.

The injury occurred at the crossing of Aliso and Alameda streets, in the city of Los Angeles. A team of horses, owned by the defendant, was being driven by an employee of defendant along Alameda street, at a point where the track of the Southern Pacific Company's railroad runs along the middle of said street. The driver was going north, along the east side of the street; but as he came near Aliso street, noticing a train of cars coming towards him, he crossed the track, for some unexplained reason, to the west side of Alameda street, and continued along that side of the latter street towards the crossing of Aliso street. Plaintiff was a flagman of the Southern Pacific Company, and his duty was to flag trains at this crossing. Defendant's evidence showed that plaintiff started from the curb on the west side of Alameda street, and near the crossing of the two streets, to go towards the middle of Alameda street, about the time defendant's horses were approaching the corner. The horses became frightened by the train at that moment coming along Alameda street. The horses shied away from the train, and towards the curb; and in doing so the near horse struck the plaintiff and knocked him down, thus injuring him.

The court, in its second and third findings, found, in effect: 1. That at the time of the injury the team was not being driven carelessly or negligently, nor at a speed dangerous to the lives or limbs of persons on said Alameda street, and that the driver exercised due care and was not guilty of any negligence; 2, that at the time plaintiff received the injury he was not exercising ordinary care, and was guilty of negligence, in this "That he went in front of said pair of horses as they approached him, and did not look out to avoid being run against by them, and did not pay attention to the approach of said horses and said wagon, and did not take any care or caution whatever to avoid being run against by said horses." The ground of the appeal is that the evidence does not support these findings. It is not necessary that the evidence should sustain both these findings, in order to support the judgment. To have found for plaintiff, it must have appeared that defendant was negligent and that plaintiff was free from negligence; there being no evidence tending to show that defendant's conduct was wanton or wilful. The evidence is sharply conflicting upon some material points touching plaintiff's negligence in not heeding the warning given

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him, and as to the want of care on the part of defendant's driver. It was the province of the court to reconcile the conflicts and pass upon the weight to be given the evidence. We can do no more than look into the evidence far enough to discover whether or not there was sufficient to sustain the findings. The driver testified that, when he first saw plaintiff, he (plaintiff) was standing on the southwest corner of the two streets, and that he was walking very slowly towards the middle of Alameda street. Witness testified that he thought he was about to stop. Witness thought there was plenty of room to pass plaintiff. "The train frightened my horses, and they crowded over towards him, and the near horse struck him." He was asked, when he observed plaintiff's dangerous position, if he could stop his horses, and answered: "No, sir; not at that time. I was using every effort to do so. The horses were frightened by the engine. * I have handled teams ever since I was old enough to handle them, and I am thirty-six years old. I hallooed at this man. Mr. Hartwell (who was in the wagon) hallooed at the top of his voice. When we hallooed at him, he had plenty of time to get out of the way." The witness Hartwell testified: "As we got pretty near to the corner the flagman (plaintiff) stepped down from the curb to walk out towards the center of the street, and the horses struck him with their breasts and run over him. To attract his attention, we called to him to look out, or 'Hello,' or something to that effect. I did so. The driver hallooed. The horses were frightened on that occasion. The occasion of their fright was the train passing, — the engine and cars. I saw him step down from the curb before we got there. When he was hit, I should say he was some four or five feet from the curb. The driver at the time was trying to pull the horses away from him. He was walking slow. We were (I could not say how far) some forty feet (thirty or forty feet) from the southwest corner of the street when I first saw Mr. Wolfskill. I was sitting by the side of the driver, in front. ** When I first saw Mr. Wolfskill he was on the walk. The train was coming and he stepped down. The train was coming from the north. *** Question by the Court: Did that train cause the shying to occur? A. Yes, sir." The witness Hubbard, who was in the wagon, testified: "We went north on Alameda street, and, on the east side of the street, somewhere between Commercial and Aliso, we crossed from the east to the west side. When near the corner of Aliso and Alameda the train came along and scared the horses. They started, and the driver done all he could to hold them, and the flagman was standing out somewhere near the corner, and they

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hollered at him to look out. Apparently, he didn't seem to move, and the neck yoke of the wagon hit him and knocked him down, and the near horse stepped on him." He testified that the horses appeared to be frightened at the approaching engine. "Question. Could he have gotten out of the way when they hollered at him? A. I believe he could if he had tried." Plaintiff's evidence tends to contradict the facts as above narrated in some particulars, and it tends in some degree to show carelessness on the part of the driver, and to exculpate plaintiff from the charge of having contributed to his injury by his want of care. The question, however, of the weight of the evidence, and as to where the preponderance lay, and as to how far the statements of witnesses were to be taken as true, was for the trial court to determine, and cannot be reviewed here. We think there was sufficient evidence to justify the findings, and the judgment and order must therefore be affirmed, and we so advise.

We concur: GRAY, C.; COOPER, C.

PER CURIAM.

For the reasons given in the foregoing opinion,

the judgment and order are affirmed.

GALLAGHER v. BUTTON.

Supreme Court of Errors, Connecticut, July, 1900.

LANDLORD AND TENANT PAROL LEASE LIABILITY OF LANDLORD INSTRUCTION. - Where plaintiff sued her landlord for a personal injury caused by the falling of the platform of a fire escape attached to the building which she occupied as a tenant, and upon which platform she had stepped in order to fasten a loose blind, the rooms being occupied by a parol lease, without any express warranty or agreement to repair, it was error to refuse defendant's request to instruct that" in the ordinary contract of letting, the law does not imply any guaranty on the part of the landlord that the leased premises are in a safe or inhabitable condition, since the tenant ordinarily has it in his power to inspect the premises, and so accepts the tenancy at his own risk." DEFECTIVE FIRE ESCAPE - ASSUMPTION OF RISK - INSTRUCTION. - In such case where a tenant occupied rooms under a parol lease, it was error to charge that it was the duty of the landlord, when he rents premises, to use all reasonable care to see that the premises were not dangerous for occupancy, to comply with all statutory regulations as to fire escapes, and to keep the same in reasonably safe condition; and that if the landlord when renting premises, knew that the fire escapes were dangerous, or could have known by the exercise of reasonable care, he was liable for injury resulting therefrom, as under such an agreement of letting there is no implied warranty that the premises rented are in a safe condition.

CONTRIBUTORY NEGLIGENCE - INSTRUCTION. — In such case where plaintiff had occupied the rooms for seven years under a parol lease from month to month, it was error to charge the jury, as affecting the question of contributory negligence, that under such lease they were to consider plaintiff as a tenant for only one month, and the condition of the premises at the commencement of that month as their condition when she went into possession, since it withdrew from consideration the important fact that plaintiff had had for at least seven years an opportunity to observe the condition of the fire escape (1).

1. Among recent actions relating to the liability of Landlord and Tenant for injuries caused by dangerous and defective premises, are the following:

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had never been before, without knocking or ringing a bell, and while trying to find his way in the darkness, fell down the stairs.

Letter carrier falling into coal hole · Owner of premises liable. -SPAINE v. STINER et al. (New York, Appellate Di vision, First Department, May, 1900), 64 N. Y. Supp. 655, action for injuries sustained by plaintiff, a letter carrier, falling into a coal hole in front of defendant's premises. Judgment for plaintiff affirmed, it being held that the question of defendant's negligence was properly submitted to the jury where

Guest of tenant injured― Landlord not liable. ROCHE V. SAWYER (Massachusetts, May, 1900), 57 N. E. Rep. 216, action by guest of tenant who was in jured at basement entrance of premises. Judgment for defendant affirmed, it being held that landlord was not liable, where the danger, if any, arose out of original condition of premises, and not from lack of repair. Pedestrian injured by fall of stone from it was shown that defendant's attenbuilding - Tenants liable.· MONROE 7. CARLISLE et al. (Massachusetts, May, 1900), 57 N. E. Rep. 332, action against landlord and tenants for injuries caused by fall of a piece of stone from capstone of window in third story of a brick building, plaintiff being struck by the stone as he was walking on the sidewalk below the window. Judgment against the tenants affirmed, the landlord not being liable where the tenants, under a five-year lease, cove nant to keep building in repair, the accident to plaintiff happening three years after the letting of the premises to defendants.

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tion had been repeatedly called to the fact that the coal hole was in a bad condition and could not be closed, and that it had remained in this condition for two years prior to the accident. Held, also, that defendant was not relieved from liability by proving lease to a third party if at the time of the execution of the lease the coal hole and its cover were unsafe.

Pedestrian injured by fall of signboard from roof - Lessees of roof liable REYNOLDS v. VAN BUREN et al. (New York, Appellate Division, First Depart ment, May, 1900), 64 N. Y. Supp. 724, action for injuries received from a large sign which fell from the roof of a building, which sign had been used by defendants for posting advertising bills. Judgment for plaintiff affirmed. This action was previously tried in the court of common pleas, and the plaintiff had a verdict, which was affirmed by the general term, but was reversed by the court of appeals upon the ground that

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APPEAL from Superior Court, New Haven County. Action by Anna Gallagher against William Button. ment in favor of plaintiff, and an order denying a motion in arrest of judgment and a motion for a new trial, defendant appeals. Judgment reversed.

The complaint alleged that on the 5th day of December, 1898, the plaintiff was residing, as tenant, in a house owned by the defendant, at 232 Wallace street, in the city of New Haven, and which said house the defendant was bound to keep safe and in a tenantable condition for the plaintiff to occupy, and which said house the

it appeared from the agreement offered in evidence, under which the defendants were using the sign in question for advertising purposes, that the defendants had merely a license from the tenant in possession to go upon the roof of the building and place advertisements upon the sign. The court further held that the instrument conveyed no estate or interest whatever in the realty, and no possession or right of possession to the building or any part of it; and that the complete possession of the building and its appurtenances, notwithstanding this paper, was in Williams, the tenant. Reynolds v. Van Beuren, 155 N. Y. 120, 49 N. E. Rep. 763. Upon the new trial of the case this agreement was not admitted in evidence, the complaint alleging and the answer admitting that defendants were lessees of the roof in question.

Tenant injured by fall of staircase — Assumption of risk.-MCGINN v. FRENCH (Wisconsin, May, 1900), 82 N. W. Rep. 724, action for injuries sustained by the giving way of a staircase used by ten ant. The facts in the case were: "On April 7, 1896, the plaintiff, acting for her husband, leased of defendant the lower flat of a building owned by him for a term of month to month. At the rear of the building was a narrow platform, with four or five steps lead ing to the ground, which it is claimed the defendant agreed to replace by a new one. The plaintiff, with her husband, moved in immediately, and con.

tinued to occupy the premises and use the platform and stairway until September, 1897. On the evening of August 24, 1897, while descending the stairs, the plaintiff was injured by one of the stairs giving way. The evidence as to the exact nature of the defect is somewhat indefinite. The stairway was about two feet wide, and was made of two stringers, one of which was nailed to the side of the house. The plaintiff thus describes the situation: The step gave way towards the side of the house, on the outside where it was fastened, nearest the house. This outside looked as though it broke right off, but that towards the house was all loose. The tread of the step upon which I placed my foot tipped right in on the side towards the house, and it turned over.' Again: 'It was split right back from here, right down to there [indicating]. The step setting on there fell right over, so that I found the grain of the wood had been split down, right through, so as to carry this protection right away.' The conclusion from all the testimony is that the step was loose from the stringer on the side towards the house, and that that part of the outside stringer upon which the step rested was broken off, the break being new. The stairs were repaired the next day by the plaintiff's husband by the use of a few nails, and they continued to use them until they vacated the premises. Whatever the defect was, the plaintiff knew of it

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