(- Utah, - 180 Pac. 699.) case where it may be reasonably ex- part calls for greater exertion in the pected that the lessee will put the case of premises intended for use premises to a use that will continue by the public than when they are let the nuisance. Jones, Land. & T. § for purely private purposes (notes 607; Taylor, Land. & T. 8th ed. Š in 92 Am. St. Rep. 515, and L.R.A.. 175; Joyce, Nuisances, § 463; 24 1916F, 1123).” Cyc. 1125; Swords v. Edgar, 59 N. In Joyce on Nuisances, § 464, Y. 28, 17 Am. Rep. 296; Grady v. it is said: “The lessors or owners Wolsner, 46 Ala. 381, 7 Am. Rep. of buildings or structures in which 593: Pierce v. German Sav. & L. public exhibitions and entertainSoc. 72 Cal. 180, 1 Am. St. Rep. 45, ments are designed to be given, and 13 Pac. 478; Longley v. McGeoch, for admissions to which the lessors 115 Md. 182, 80 Atl. 843; Isham v. directly or indirectly receive. comBroderick, 89 Minn. 397, 95 N. W. pensation, are subject to a different 224, 14 Am. Neg. Rep. 112; Ingwer- rule from that in the ordinary cases sen v. Rankin, 47 N. J. L. 18. 54 Am. of leasing of buildings, in that while Rep. 109; Fish v. Dodge, 4 Denio, there is in the latter no implied war311, 47 Am. Dec. 254; Marsan v. ranty on the part of the lessor that French, 61 Tex. 173, 48 Am. Rep. the buildings are fit and safe for the 272; Clancy v. Byrne, 56 N. Y. 129, purposes for which they are used, 15 Am. Rep. 391; Irvine v. Wood, yet in the former case the lessors or 51 N. Y. 224, 10 Am. Rep. 603, Folk- owners of such buildings or strucman v. Lauer, 244 Pa. 605, 91 Atl. tures hold out to the public that the 218; Tomle v. Hampton, 129 Ill. 379, structures are reasonably safe for 21 N. E. 800; Simms v. Kennedy, - the purposes for which they are let Fla. —, L.R.A.1918C, 297, 76 So. or used, and impliedly undertake 739; note in 50 L.R.A.(N.S.) 291, that due care has been exercised in 292; note in L.R.A.1916F, 1123- their erection, and such lessor hav. 1129.

ing created an unsafe and dangerous Where property is leased to a structure, and not having performed tenant for a public use the care re

his duty in exercising the proper dequired by the landlord should be of gree of care to know that it was

a higher degree safe, he is liable to a person injured -letting property for publio than when the prop

by reason of its being unsafe or of erty is let for pri- improper and faulty construction required.

vate purposes. Pub- whereby it constitutes a nuisance." lic policy demands such care for the Jones, Land. & T. $ 608; 2 Mcprotection of the public, and this is

Adam, Land. & T. 1643; Barrett v. particularly applicable here in Utah, Lake Ontario Beach Improv. Co. 174 where public resorts and amusement

N. Y. 310, 61 L.R.A. 829, 66 N. E. parks are numerous and their at- 968, 14 Am. Neg. Rep. 144. tractions varied and alluring. In We agree with appellant's counsel Beaman v. Grooms, 138 Tenn. 325,

that as a building by itself the soL.R.A.1918B, 307, 197 S. W. 1091, called shooting gallery was not a the court says: "While, so far as nuisance. As a bare

a

Nuisancethe basic question of the imposition building it was in- shooting

gallery. of the duty on a landlord to know nocuous. When tarthe condition of the premises he

gets were placed in position and the leases is concerned, no distinction

other paraphernalia installed it was can be made between private and

still harmless. It did not become an public buildings or premises (Will- active and dangerous instrumentalcox v. Hines, 100 Tenn. 538, 557, 41 ity until a gun was placed in the L.R.A. 278, 66 Am. St. Rep. 770, 46 hands of a patron, and not until he S. W. 297, Edwards v. New York & fired the gun. Then the missiles H. R. Co. 98 N. Y. 245, 50 Am. Rep. became active agents of danger, and 659); it seems to be fair and reason- they were dangerous then because able to hold that due care on his the walls of the building had not

use-care

cause-letting

been protected, and because holes question is: Was the dilapidated and cracks were permitted to be in condition of the so-called shooting the walls, and because bullets and gallery the causa sine qua non? If fragments of lead which glanced the cause had not existed, would the from the targets and went through injury have taken openings in the walls were likely to place? If the wall Proximate hit and injure innocent third par- had been properly dilapidated ties. All of this could have been protected, and there lord's liability.

landforeseen by the appellant at the had been no holes time the lease was executed. It will or cracks in the wall, would the fragnot do to say that the place had been ment of lead have struck the reused as a shooting gallery for years; spondent in the eye and blinded that the use by appellant's tenant him? It is true that there was a of the premises as a shooting gallery concurring cause; but the cause was not contemplated by the parties which set the others in motion,-the to the lease; and that the danger cause of causes, and without which from its use as a shooting gallery the accident would not have occould not have been anticipated by curred,—was the condition of the the lessor. Appellant knew, or shooting-gallery wall. As stated in should have known, that the lessees the Kellogg Case, supra: “The priwould use the shooting gallery as it mary cause may be the proximate

had been used, that cause of a disaster, though it may Landlord and tenant-notice

children would go operate through successive instruof possible there in large num- ments, as an article at the end of a injury.

bers, and that they chain may be moved by a force apwould be subjected to danger unless plied to the other end, that force bethe shooting gallery was repaired ing the proximate cause of the and the walls were properly protect- movement.” ed.

Proximate cause has been deIt is earnestly urged that the in- fined as “the efficient cause, the one jury to the respondent was not the that necessarily sets the other proximate result of appellant's causes in operation." 3 Words & wrong, and that the condition of the Phrases, 1335. It has also been debuilding in which the shooting gal fined as cause

Dennition lery was placed was not the proxi- from which a man proximate mate cause of the accident. Appel- of ordinary experilant quotes from Milwaukee & St. ence and sagacity could foresee that P. R. Co. v. Kellogg, 94 U. S. 469, 24 the result might probably ensue. In L. ed. 256, cited in Anderson v. Bal

our opinion the district court took timore & O. R. Co. 74 W. Va. 21, 51 the proper view of the law applicable L.R.A.(N.S.) 892, 81 S. E. 581, in to the evidence, and properly overwhich case it is said: “The ques- ruled appellant's motion for a nontion always is: Was there an un- suit, and its request for an instrucbroken connection between the

tion directing a verdict in its favor. wrongful act and the injury, a con- Appellant further argues that, tinuous operation? Did the facts even if it be conceded that the facts constitute a continuous succession of were sufficient to justify the court events, so linked together as to in submitting the case to the jury, make a natural whole, or was there it was error vitally affecting the some new and independent cause in- defense for the court to refuse to tervening between the wrong and submit to the jury the question as the injury?"

to whether or not the passageway, According to the evidence in this the place where the respondent was case there was an unbroken connec- standing at the time of the injury, tion between the wrongful act and was laid out or intended by the apthe injury,-between the nuisance pellant as or for a footpath or passand the unfortunate result. The ageway for the use of patrons of

a

cause.

'(- Utah, -, 180*Pac. 599.) the resort. In its brief appellant as far as I know, it was being used says: "Plaintiff's counsel, by their all the time.” pleadings, recognized the vital na- Appellant complains that the trial ture of this issue, and expressly al- court not only refused to give the leged that the space in question was instruction requested, but declined laid out and intended by defendant to give any instruction whatever upas a footpath for the patrons of the on the subject, and cites Anderresort, and that the plaintiff was son v. Nielson, 43 Utah, 564, 137 rightfully there by implied invita. Pac. 152, wherein it is said: "Where tion as the guest or licensee of the there was evidence tending to suplessee of the premises."

port a theory of defendant, it was Referring to the path, the follow- error for the court to refuse to subing language was used in the com- mit the case on such theory." plaint: "That during all of the No such issue as now contended times hereinbefore mentioned, and for by the appellant was raised by continuously up to and including the the pleadings, and had it been oftime of the said injury to the plain- fered any evidence on the subject tiff, there existed immediately east would have been immaterial. If it of the said building in which the was the appellant's theory that its shooting gallery was so operated a good intentions constituted a dewell-defined and beaten path and fense, and that its intention with repassageway, which during all of gard to the pathway was vital, the said times had been continuously, theory was not made an issue by frequently, and regularly used, and the pleadings, was not supported by that at the time of said injury was evidence, and not justified by reaused by patrons of the said resort in son. Appellant's theory was wholly passing by the said building in speculative, and even if supported which the said shooting gallery was by evidence would not have contraso operated, all of which was at all dicted the undisput

Appeal-refusal times well and fully known to the ed testimony that of instructionssaid defendant."

the path was actuThe vital fact is that the path ally used by children on the day of was used by the public. What it the accident, and that it had frewas intended for was not an issue quently been used by others at many in any way and was wholly imma- times prior to the time when reterial; and the court properly re- spondent was injured. fused to instruct as requested by the The issues were fully and fairly appellant. It may well be that the

submitted to the jury by the court's appellant never intended the space instructions, and a careful considspoken of to be used as a passage- eration of all the assignments of erway, but it certainly was used as

ror discussed by appellant's counsel, such according to the undisputed

and a review of all the evidence, evidence. Landlord and

One of

convinces us that there is no reason tenant-purpose the witnesses said of path.

for reversing the judgment of the in response to a

District Court. question by appellant's counsel: "It may not have been intended for a

Judgment affirmed. Costs to rewalk, but it was used for a walk."

spondent. Again the witness said: "It may Corfman, Ch. J., and Frick, Gid. not have been intended for a walk; eon, and Thurman, JJ., concur.

error.

ANNOTATION,

Proximate cause as determining landlord's liability, where injury results to a

third person from a nuisance that becomes such only upon tenant's using

the premises. The well-established rule, that one of the property that caused the injury who leases property with an incipient or upon which it occurred, even nuisance thereon, which becomes ac- though the property is at the time in tive and causes injury to a third per- possession and under the control of a son only by reason of the lessee's use lessee thereof, if it appears that the of the property for the purposes of the use of the premises by the tenant for lease and in the manner intended at the purpose for which they were leased the time of the lease, is liable in dam- in the manner contemplated by the ages for the injury, is here assumed. parties to the lease has developed or It is here submitted that this rule is made active a potential or quiescent based upon the doctrine of joint and nuisance and that nuisance caused the several liability of tort-feasors, so injury. This seems to be a well-estabthat the question of proximate cause lished rule of law governing the liaof the injury, as between the acts of bility of landlords for injuries to third the landlord and those of the tenant, persons in this class of cases. That is irrelevant. Of course, the plain- the rule as stated abstractly is correct tiff must show that the nuisance, has been assumed for the purposes of which has been created and continued this discussion. by the acts of both landlord and ten- The broad basis for the rule is that ant, was the proximate cause of the a person is liable in damages for ininjury in order to recover from either juries to innocent persons caused by or both, but when he has done so the a nuisance that he has created or landlord cannot defeat a recovery by maintained, and he cannot avoid the showing that the tenant's acts, al- liability by parting with possession though within the rule, and not his and control of the property containing own, were the proximate cause of the it. This statement of the broader injury. It is not contended that a principle necessarily excludes the conlessor could not make himself liable, tention that the acts of the landlord independently of the rule, by doing were not the proximate cause of the some act or acts that proved to be the injury. But when we formulate the proximate cause of the injury, but it narrow rule, thereby introducing acts is contended that the question of proxi- of the lessee without which the nuimate cause as presented and decided sance would remain quiescent and the in the reported case (LARSON V. CAL- injury would not occur, we open the DER'S PARK Co. ante, 731) was irrel- door for the contention that the acts evant and decided unnecessarily, aft- of the tenant, and not those of the er the court had held that the facts landlord, were the proximate cause of brought the case within the rule above the injury. But the argument that the stated. In discussing this contention, act of the landlord was not the proxithe incidental points used in the argu- mate cause of the injury is irrelevant ment cannot, of course, be annotated even as applied to cases falling unexhaustively. The discussion is lim- der the narrower rule, if the basis ited to liability of landlord on the of both rules as promuigated in the theory of nuisance, and does not ap- early cases is accepted as the corply if the case is to be tried on the rect basis for the rules. Thus, in theory of negligence.

holding a lessor liable in a case of The court in the reported case (LAR- the kind mentioned, the court, in SON v. CALDER'S PARK Co.) holds that House v. Metcalf (1858) 27 Conn. one who is injured in person or prop- 631, said that "everyone who aids, erty without negligence on his part abets, instigates, authorizes, or commay recover damages from the owner mands, as well as everyone who ac

tively participates in, the commission plaintiff received her injury, was 300 of a tort, is himself a principal tort- or 400 feet from the powder house, feasor, and liable as such." Clearly and was built before the powder house, the question of proximate cause, as but the plaintiff did not occupy it between the acts of the landlord and till afterwards. It is suggested that those of the tenant, is irrelevant if the plaintiff assumed the risk of any the rule is based upon the doctrine of explosion. We think not. Campbell their joint and several liability as v. Seaman (1876) 63 N. Y. 568, 20 tort-feasors. In the case just cited Am. Rep. 567; Brady v. Weeks (1848) the defendant had constructed a wheel, 3 Barb. (N. Y.) 157; Wood, Nuisances, in connection with a mill, so close to 3d ed. 8 76. The explosion occurred a highway that the wheel when in mo- during a thunderstorm. A witness livtion would frighten horses upon the ing in that vicinity testified that there highway. A tenant was operating the was a heavy thunderstorm; that he mill when plaintiff's horse was fright- saw the lightning come down, and ened by the wheel in motion. Defend- then heard the explosion. The court ant was held liable as a joint tort- charged the jury that if it was a fact feasor for the injury resulting from that the magazine was exploded by the running away of his frightened lightning, that would constitute no dehorse, without reference to the doc- fense to the action, if they found that trine of proximate cause.

the maintenance in that place of the And in Gordon v. Peltzer (1894) 56 magazine was a nuisance. This is Mo. App. 599, the court said: "If claimed to be error. We think not.

the landlord shall erect a nui- The injury was caused by the explosance and let the same to a tenant, sion. The defendants, at least, were then both will be held liable for the not free from fault which co-operated consequent injuries, the one for the

to produce the result. 1 Am. & Eng. creation and the other for the main

Enc. Law, 2d ed. 595." tenance. They are considered as joint

This theory of joint and several liatort-feasors."

bility is pointed out in a forceful way In Prussak v. Hutton (1898) 30 App.

by Mr. Justice Paxton in Fow v. RobDiv. 66, 51 N. Y. Supp. 761, where a

erts (1885) 108 Pa. 489. The landlord lessor and lessee of property to be

alone was defendant in an action for used as a powder house, together with

damages arising out of injuries reone who by consent of the lessee kept

sulting from the tenant's use of a cessthe key of and stored powder in the

pool as constructed by the landlord, leased premises, were sued jointly for an injury caused by an explosion in

and, after stating the general rule in the house, the court said: "Clearly, all

such cases, the court said: “Applying

this principle to the case in hand, it of the defendants participated in the

is too clear for argument that the maintenance of the powder house, and

tenant would be responsible to the the trial court did not, we think, err

plaintiff for the flow of the offensive in holding them all liable. Wood, Nui

matter upon the premises of the latsances, 3d ed. $$ 31, 73, 142, 832, 875;

ter. He is responsible for the reason Pickard v. Collins (1856) 23 Barb. (N.

that the act complained of is his. Y.) 454; Chenango Bridge Co. v. Lewis

The filth was deposited there by him(1872) 63 Barb. (N. Y.) 115; Irvine

self, his family, or by others whom he v. Wood (1872) 51 N. Y. 228, 10 Am.

permitted to use the privy. . Rep. 603; Ahern v. Steele (1889) 115

The defendant having demised the N. Y. 218, 5 L.R.A. 449, 12 Am. St. Rep. premises in question to a tenant, 778, 22 N. E. 193; McAndrews v. Col

with a cesspool so situated thereon lard (1880) 42 N. J. L. 189, 36 Am. that its use must necessarily result in Rep. 508; Comminge v. Stevenson a nuisance to the plaintiff, we are of (1890) 76 Tex. 642, 13 S. W. 556; 16 opinion that she is liable to the plainAm. & Eng. Enc. Law, 981. The dwell- tiff. It was urged, however, that it ing house in which the plaintiff and was only for the manner of its use her husband lived, and where the that the well became a nuisance. We