Unless the injury or damage complained of is in law the proximate and direct result of the alleged wrongful act of the owner of premises, he is not responsible to the one injured thereon while the same are in the exclusive possession and under the control of the tenant.

Anderson v. Baltimore & O. R. Co. 74 W. Va. 17, 51 L.R.A. (N.S.) 888, 81 S. E. 579; Clifford v. Atlantic Cotton Mills, 146 Mass. 47, 4 Am. St. Rep. 279, 15 N. E. 84; Gardner v. Rhodes, 114 Ga. 929, 57 L.R.A. 749, 41 S. E. 63; Milwaukee & St. P. R. Co. v. Kellogg, 94 U. S. 469, 24 L. ed. 256.

Messrs. D. H. Thomas and W. R. Hutchinson for respondent.

Weber, J., delivered the opinion of

the court:

Laura Richardson, as guardian ad litem of her son, David Larson, eleven years of age, instituted this action in the district court of Salt Lake county against the defendant for the recovery of damages for the loss of the boy's right eye as a result of defendant's alleged negli gence. The case was tried before the court with a jury, and a verdict was rendered in favor of plaintiff, and from the judgment entered thereon defendant appeals.

In his complaint the respondent alleges that he is an infant, eleven years of age, and that he sues by his guardian ad litem; that defendant is a Utah corporation; that on June 2, 1916, the date of plaintiff's alleged injury, and for many years prior, appellant was the owner of a pleasure resort or park known as "Wandamere" in Salt Lake City, and that Wandamere was widely known as a suitable and safe place for the entertainment of the public and of children; that long before the alleged injury appellant erected a number of buildings at said resort for the use of itself, and its lessees and concessioners, for the purpose of there conducting attractions and amusements for gain and profit and for the entertainment of the public; that appellant had constructed one of the buildings for the purpose of being used as a shooting gallery, where patrons of the resort were

permitted for pay to shoot with rifles loaded with gunpowder and leaden bullets at certain targets; that said shooting gallery was constructed by appellant many years prior to June 2, 1916, and during all the time since its construction had been used as a shooting gallery; that the targets used in the shooting gallery were constructed of iron, and that when bullets would strike against them they would glance from the targets and, unless prevented by some suitable and proper protection, would fly from the targets and from the building out to where patrons of the resort were passing by or standing near the shooting gallery, and were liable to strike and injure such patrons; that during all of the time and continuously up to and including June 2, 1916, there existed immediately east of the building in which the shooting gallery was so operated a welldefined and beaten path, which had been continuously, frequently, and regularly used, and at the time of the alleged injury was used, by patrons of the park in passing by the shooting-gallery building; that appellant carelessly and negligently so constructed the east wall of said building of boards and lumber that large cracks, holes, and openings remained therein, through which bullets, when they struck against and glanced from the targets, would fly out to where patrons were passing along the said path, and that by reason thereof the shooting gallery and premises thereabouts became and were unsafe and dangerous to patrons; that all of these conditions were well known to the appellant; that on April 29, 1916, the appellant leased the resort to parties who organized a corporation known as the Jackson-Sweeten Amusement Company, for the purpose of operating the resort under said lease, and that with the knowledge and consent of appellant the Jackson-Sweeten Amusement Company entered into possession of the resort under the conditions described, and operated it during the season of 1916; that

the lease provided that the lessees were to have complete possession of Wandamere park, and should have the right and privilege of operating and maintaining all of the attractions and amusements which were ordinarily and usually there maintained and operated; that at the time the lease was executed, and when the park was taken possession of by the Jackson-Sweeten Amusement Company, the building in which the shooting gallery had been operated was one of the buildings of said resort, and the shooting gallery, operated as above set forth, was one of the attractions and amusements operated by the lessees, and that the unsafe condition of the building continued while in the possession of the lessees as it had been for many years before the lease; that during the season of 1916 the resort was widely advertised by the Jackson-Sweeten Amusement Company, which induced the teachers of the public schools of Salt Lake City to hold their "field day" for the public schools of the city at said resort on June 2, 1916, the pupils being given free admission on said date; that respondent was one of those to whom free admission was given to the resort, and that while there on the date mentioned he passed along the path referred to, and that at that time some patron of the gallery shot at the targets, and a bullet so shot from the rifle glanced from the target and passed through a hole or crack in the east wall of the gallery and struck the respondent in his right eye, and as a result of the accident his eye was destroyed and its removal became

necessary.

Appellant, in its answer, admitted the age of the respondent, the corporate existence of the appellant, its ownership of Wandamere park, and that it executed the written lease set out in the complaint. All the other allegations of the complaint were denied in the answer.

The material allegations of the complaint were supported by substantial evidence. It was shown

that the shooting gallery had been operated since 1909; that the building was old even at that time; that the east wall, constructed of boards, had holes, cracks, and openings therein, and that this condition had existed for some years. One of the boards taken from the wall and introduced in evidence as an exhibit is literally peppered with bullets and fragments of bullets. On the east of the shooting gallery, north and south, there was a ditch with running water next to the wall of the gallery, and also a passageway, which some of the witnesses described as a well-defined track; others speak of it as a well-beaten path; all who testified on the subject said that it was often used as a passageway, particularly on important days. By the terms of the lease it was provided that the lessees expend certain sums of money in improvements and repairs, but nothing was said about the shooting gallery. They agreed to keep all the buildings used for attractions in good repair, and at all times to employ competent assistance and help in maintaining the attractions, and," in case of any accident giving rise to an action for personal injury by reason of the operation and maintenance of the park, the lessees agreed to defend any action brought and to hold the lessor harmless. The lessees were also given the right to sell concessions and give persons the right to operate attractions at the park.

The appellant maintains that from the evidence it is plain that the building or structure used as a shooting gallery was not in any sense inherently dangerous, and that whatever danger, if any, there was to patrons, arose wholly from the negligence of the lessees and their sublessees in installing and operating an apparatus for a shooting booth, and from their neglect to take any reasonable precaution to prevent patrons from coming in close proximity to the targets placed and used in said gallery. As to the law, counsel for appellant as

sert that the general rule is that there is no implied warranty on the part of a landlord that leased premises are in a safe condition, or that he will keep the premises repaired or in a safe condition; and that, in the absence of an express covenant on the part of the landlord to maintain the premises in repair, it is generally held that neither the tenant nor a guest of the tenant has any right of action against the landlord for injuries sustained by reason of defects in the premises where there was no fraud or misrepresentation on the part of the landlord leasing the premises; that the overwhelming weight of authority is to the effect that, where property at the time of the demise is not a nuisance, and an injury happens by some act of the tenant or while the tenant has the entire possession or control of the premises, the owner is not liable. The following authorities are cited by appellant and support its contention: Jones, Land. & T. § 574; Doyle v. Union P. R. Co. 147 U. S. 413, 37 L. ed. 223, 13 Sup. Ct. Rep. 333; Hamilton v. Feary, 8 Ind. App. 615, 52 Am. St. Rep. 485, 35 N. E. 48; Moynihan v. Allyn, 162 Mass. 270, 38 N E. 497; Harpel v, Fall, 63 Minn. 520, 65 Ń. W. 913; Marshall v. Heard, 59 Tex. 266; Burdick v. Cheadle, 26 Ohio St. 393, 20 Am. Rep. 767; Robbins v. Jones, 15 C. B. N. S. 221, 143 Eng. Reprint, 768, 33 L. J. C. P N. S. 1, 10 Jur. N. S. 239, 9 L. T. N. S. 523, 12 Week. Rep. 248; Mellen v. Morrill, 126 Mass. 545, 30 Am. Rep. 695; Fellows v. Gilhuber, 82 Wis. 639, 17 L.R.A. 577, 52 N. W. 307; Miles v. Janvrin, 196 Mass. 431, 13 L.R.A. (N.S.) 378, 124 Am. St. Rep. 575, 82 N. E. 708; 24 Cyc. 1092; Peterson v. Bullion-Beck & C. Min. Co. 33 Utah, 20, 91 Pac. 1095, 14 Ann. Cas. 1122; Clifford v. Atlantic Mills, 146 Mass. 47, 4 Am. St. Rep. 279, 15 N. E. 84; Griffin v. Jackson Light & P. Co. 92 Am. St. Rep. 496, and note C. p. 524 (128 Mich 653, 55 L.R.A. 318, 87 N. W. 888); Coman v. Alles, 198 Mass. 99, 14 L.R.A. (N.S.) 950, 83 N. E. 1097; Lufkin

v. Zane, 157 Mass. 117, 17 L.R.A. 251, 34 Am. St. Rep. 262, 31 N. E. 757; Gardner v. Rhodes, 114 Ga. 929, 57 L.R.A. 749, 41 S. E. 63; Kalis v. Shattuck, 69 Cal. 593, 58 Am. Rep. 568, 11 Pac. 346; Ryan v. Wilson, 87 N. Y. 471, 41 Am. Rep. 384; McCarthy v. York County Sav. Bank, 74 Me. 315, 43 Am. Rep. 591.

Appellant relies on the case of Peterson v. Bullion-Beck & C. Min. Co. 33 Utah 20, 91 Pac. 1095, 14 Ann. Cas 1122, and specially refers to an excerpt quoted from Taylor, Land. & Tenant, by Mr. Justice Frick in his concurring opinion, as a correct statement of the law applicable to cases like the one at bar. No doubt the law is properly reflected in the excerpt quoted from Taylor, but the quotation has no application to this case for the reason that here the shooting gallery building, at the time it was leased by the appellant, was in such a condition that it constituted a quiescent nuisance. From the undisputed evidence it is manifest that by using the building which was intended for use as a shooting gallery and which was leased for that

tenant-letting

purpose, in the con- Landlord and dition it was in shooting galwhen leased, the lery-liability projectiles in pass- passer-by. ing from the guns

for injury to

would necessarily be deflected from the target through the openings in the wall of the building, and would thus probably come in contact with a person passing the building along the passageway and injure him. The injury inflicted might be trivial, or it might, as in the case at bar, be quite serious. It was the unsafe condition of the building as leased, however, which would expose the passer-by to danger, and not the sole act of the tenant, for the reason that, if the tenant used the building at all as a shooting gallery in the condition in which it was, the danger would certainly be constantly imminent. The principle upon

which the Peterson Case rests is also illustrated and applied by this court in Pembroke Stationery Co. v.

Rogers, 41 Utah, 411, 125 Pac. 866. The question here is not such as was involved in the Peterson Case. Here the evidence is that for years prior to the execution of the lease by appellant the shooting gallery as operated had been a dangerous nuisance. The appellant must have known this fact. It also knew of the passageway or path, and knew that it was used by the patrons of the resort, and that every person using it was in danger from flying bullets or parts of bullets which often glanced from the targets and, when not embedded in the walls, passed through the cracks and holes therein. For some seven or eight years at least, as shown by the evidence, this building had been used in that condition as a shooting gallery. There was no reason to think that the lessees would use it for any other purpose. Any man of ordinary intelligence would know that the tenants would probably continue its use as a shooting gallery, and, under the circumstances disclosed by the evidence, it may be fairly said that a continuance of the manner in which it had been used was contemplated by the parties to the lease.

In 16 R. C. L. § 594, p. 1076, it is said: "It is the well-settled rule that the landlord is properly chargeable with liability to a stranger where the cause of injury to the latter is a nuisance existing on the premises at the time of the demise. No person can create or maintain a nuisance upon his premises and escape liability for the injury occasioned by it to third persons. Nor can a lessor so create a nuisance and then escape liability for the consequences by leasing the premises to a tenant. Nor is it material that the negligence of the lessee contributed to the injury; that may render the lessee also liable, but it cannot exempt the lessor from liability. Indeed, the nuisance may be merely passive until some agency of the lessee intervenes, and the lessor will still be liable. The theory upon which the landlord is held to be liable where the premises are leased

with a nuisance is that he created the nuisance, and will be presumed to have intended the continuance thereof, or that he acquired title with an existing nuisance and knowingly leased them in that condition. In either case the act of leasing with the nuisance is held to raise the presumption that he intended the nuisance to be continued. Prior to and at the time of the lease, it was the duty of the lessor to put an end to the nuisance. If he fails to do this, and leases the premises with the nuisance on them, he may be deemed, and is deemed, to authorize the continuance of the nuisance, and is therefore liable for the consequences of such continuance. Whether, therefore, the defect is one of original construction, or arises from a failure to repair, or from the maintenance on the premises of any condition endangering the health or safety of strangers, whatever its nature, if it continues. a nuisance, the lessor will be responsible for its consequences if he leases the premises with the nuisance upon them, and thus authorizes its continuance."

And this author further states, in § 598: "It is not always necessary in order that the landlord may be held liable for injuries resulting from a nuisance on the leased premises that the cause of the injury be in and of itself a nuisance at the time of the lease. Leases are made with a view to the use of the premises leased, and if the injury to the person or property of a stranger is the result of the reasonable, ordinary, and contemplated manner of use of the premises, the lessor will be responsible therefor, although unused, and as they stood at the time of the demise, the premises were not, of themselves, a nuisance."

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The weight of authority is to the effect that if an owner creates a dangerous nuisance on his land he cannot avoid liability to a person in- nuisancejured jured thereby by leasing to another his land, with the nuisance thereon, especially in a

liability.