been protected, and because holes and cracks were permitted to be in the walls, and because bullets and fragments of lead which glanced from the targets and went through openings in the walls were likely to hit and injure innocent third parties. All of this could have been foreseen by the appellant at the time the lease was executed. It will not do to say that the place had been used as a shooting gallery for years; that the use by appellant's tenant of the premises as a shooting gallery was not contemplated by the parties to the lease; and that the danger from its use as a shooting gallery could not have been anticipated by the lessor. Appellant knew, or should have known, that the lessees would use the shooting gallery as it

Landlord and tenant-notice of possible injury.

had been used, that children would go there in large numbers, and that they would be subjected to danger unless the shooting gallery was repaired and the walls were properly protected.

It is earnestly urged that the injury to the respondent was not the proximate result of appellant's wrong, and that the condition of the building in which the shooting gallery was placed was not the proximate cause of the accident. Appellant quotes from Milwaukee & St. P. R. Co. v. Kellogg, 94 U. S. 469, 24 L. ed. 256, cited in Anderson v. Baltimore & O. R. Co. 74 W. Va. 21, 51 L.R.A. (N.S.) 892, 81 S. E. 581, in which case it is said: "The question always is: Was there an unbroken connection between the wrongful act and the injury, a continuous operation? Did the facts constitute a continuous succession of events, so linked together as to make a natural whole, or was there some new and independent cause intervening between the wrong and the injury?"

According to the evidence in this case there was an unbroken connection between the wrongful act and the injury,-between the nuisance and the unfortunate result. The

or cracks in the wall, would the fragment of lead have struck the respondent in the eye and blinded him? It is true that there was a concurring cause; but the cause which set the others in motion,-the cause of causes, and without which the accident would not have occurred,-was the condition of the shooting-gallery wall. As stated in the Kellogg Case, supra: "The primary cause may be the proximate cause of a disaster, though it may operate through successive instruments, as an article at the end of a chain may be moved by a force applied to the other end, that force being the proximate cause of the movement."

Proximate cause has been defined as "the efficient cause, the one that necessarily sets the other causes in operation." 3 Words & Phrases, 1335. It has also been defined as a cause from which a man proximate of ordinary experi

Definition

cause.

ence and sagacity could foresee that the result might probably ensue. In our opinion the district court took the proper view of the law applicable to the evidence, and properly overruled appellant's motion for a nonsuit, and its request for an instruction directing a verdict in its favor.

Appellant further argues that, even if it be conceded that the facts were sufficient to justify the court in submitting the case to the jury, it was error vitally affecting the defense for the court to refuse to submit to the jury the question as to whether or not the passageway, the place where the respondent was standing at the time of the injury, was laid out or intended by the appellant as or for a footpath or passageway for the use of patrons of

180 Pac. 599.)

(— Utah, —,

the resort. In its brief appellant says: "Plaintiff's counsel, by their pleadings, recognized the vital nature of this issue, and expressly alleged that the space in question was laid out and intended by defendant as a footpath for the patrons of the resort, and that the plaintiff was rightfully there by implied invitation as the guest or licensee of the lessee of the premises."

Referring to the path, the following language was used in the complaint: "That during all of the times hereinbefore mentioned, and continuously up to and including the time of the said injury to the plaintiff, there existed immediately east of the said building in which the shooting gallery was so operated a well-defined and beaten path and passageway, which during all of said times had been continuously, frequently, and regularly used, and that at the time of said injury was used by patrons of the said resort in passing by the said building in which the said shooting gallery was so operated, all of which was at all times well and fully known to the said defendant."

The vital fact is that the path was used by the public. What it was intended for was not an issue in any way and was wholly immaterial; and the court properly refused to instruct as requested by the appellant. It may well be that the appellant never intended the space spoken of to be used as a passageway, but it certainly was used as such according to the undisputed evidence. One of tenant-purpose the witnesses said in response to a question by appellant's counsel: "It may not have been intended for a walk, but it was used for a walk." Again the witness said: "It may not have been intended for a walk;

Landlord and

of path.

as far as I know, it was being used all the time."

Appellant complains that the trial court not only refused to give the instruction requested, but declined to give any instruction whatever upon the subject, and cites Anderson v. Nielson, 43 Utah, 564, 137 Pac. 152, wherein it is said: "Where there was evidence tending to support a theory of defendant, it was error for the court to refuse to submit the case on such theory."

No such issue as now contended for by the appellant was raised by the pleadings, and had it been offered any evidence on the subject would have been immaterial. If it was the appellant's theory that its good intentions constituted a defense, and that its intention with regard to the pathway was vital, the theory was not made an issue by the pleadings, was not supported by evidence, and not justified by reason. Appellant's theory was wholly speculative, and even if supported by evidence would not have contradicted the undisput- Appeal-refusal ed testimony that of instructions→ the path was actu

error.

ally used by children on the day of the accident, and that it had frequently been used by others at many times prior to the time when respondent was injured.

The issues were fully and fairly submitted to the jury by the court's instructions, and a careful consideration of all the assignments of error discussed by appellant's counsel, and a review of all the evidence, convinces us that there is no reason for reversing the judgment of the District Court.

Judgment affirmed. Costs to respondent.

Corfman, Ch. J., and Frick, Gideon, and Thurman, JJ., concur.

The well-established rule, that one who leases property with an incipient nuisance thereon, which becomes active and causes injury to a third person only by reason of the lessee's use of the property for the purposes of the lease and in the manner intended at the time of the lease, is liable in damages for the injury, is here assumed. It is here submitted that this rule is based upon the doctrine of joint and several liability of tort-feasors, so that the question of proximate cause of the injury, as between the acts of the landlord and those of the tenant, is irrelevant. Of course, the plaintiff must show that the nuisance, which has been created and continued by the acts of both landlord and tenant, was the proximate cause of the injury in order to recover from either or both, but when he has done so the landlord cannot defeat a recovery by showing that the tenant's acts, although within the rule, and not his own, were the proximate cause of the injury. It is not contended that a lessor could not make himself liable, independently of the rule, by doing some act or acts that proved to be the proximate cause of the injury, but it is contended that the question of proximate cause as presented and decided in the reported case (LARSON V. CALDER'S PARK Co. ante, 731) was irrelevant and decided unnecessarily, after the court had held that the facts brought the case within the rule above stated. In discussing this contention, the incidental points used in the argument cannot, of course, be annotated exhaustively. The discussion is limited to liability of landlord on the theory of nuisance, and does not apply if the case is to be tried on the theory of negligence.

The court in the reported case (LARSON V. CALDER'S PARK Co.) holds that one who is injured in person or property without negligence on his part may recover damages from the owner

of the property that caused the injury or upon which it occurred, even though the property is at the time in possession and under the control of a lessee thereof, if it appears that the use of the premises by the tenant for the purpose for which they were leased in the manner contemplated by the parties to the lease has developed or made active a potential or quiescent nuisance and that nuisance caused the injury. This seems to be a well-established rule of law governing the liability of landlords for injuries to third persons in this class of cases. That the rule as stated abstractly is correct has been assumed for the purposes of this discussion.

The broad basis for the rule is that a person is liable in damages for injuries to innocent persons caused by a nuisance that he has created or maintained, and he cannot avoid the liability by parting with possession and control of the property containing it. This statement of the broader principle necessarily excludes the contention that the acts of the landlord were not the proximate cause of the injury. But when we formulate the narrow rule, thereby introducing acts of the lessee without which the nuisance would remain quiescent and the injury would not occur, we open the door for the contention that the acts of the tenant, and not those of the landlord, were the proximate cause of the injury. But the argument that the act of the landlord was not the proximate cause of the injury is irrelevant even as applied to cases falling under the narrower rule, if the basis of both rules as promuigated in the early cases is accepted as the correct basis for the rules. Thus, in holding a lessor liable in a case of the kind mentioned, the court, in House v. Metcalf (1858) 27 Conn. 631, said that "everyone who aids, abets, instigates, authorizes, or commands, as well as everyone who ac

tively participates in, the commission of a tort, is himself a principal tortfeasor, and liable as such." Clearly the question of proximate cause, as between the acts of the landlord and those of the tenant, is irrelevant if the rule is based upon the doctrine of their joint and several liability as tort-feasors. In the case just cited the defendant had constructed a wheel, in connection with a mill, so close to a highway that the wheel when in motion would frighten horses upon the highway. A tenant was operating the mill when plaintiff's horse was frightened by the wheel in motion. Defendant was held liable as a joint tortfeasor for the injury resulting from the running away of his frightened horse, without reference to the doctrine of proximate cause.

And in Gordon v. Peltzer (1894) 56 Mo. App. 599, the court said: "If the landlord shall erect a nuisance and let the same to a tenant, then both will be held liable for the consequent injuries,-the one for the creation and the other for the maintenance. They are considered as joint tort-feasors."

In Prussak v. Hutton (1898) 30 App. Div. 66, 51 N. Y. Supp. 761, where a lessor and lessee of property to be used as a powder house, together with one who by consent of the lessee kept the key of and stored powder in the leased premises, were sued jointly for an injury caused by an explosion in the house, the court said: "Clearly, all of the defendants participated in the maintenance of the powder house, and the trial court did not, we think, err in holding them all liable. Wood, Nuisances, 3d ed. §§ 31, 73, 142, 832, 875; Pickard v. Collins (1856) 23 Barb. (N. Y.) 454; Chenango Bridge Co. v. Lewis (1872) 63 Barb. (N. Y.) 115; Irvine v. Wood (1872) 51 N. Y. 228, 10 Am. Rep. 603; Ahern v. Steele (1889) 115 N. Y. 218, 5 L.R.A. 449, 12 Am. St. Rep. 778, 22 N. E. 193; McAndrews v. Collard (1880) 42 N. J. L. 189, 36 Am. Rep. 508; Comminge v. Stevenson (1890) 76 Tex. 642, 13 S. W. 556; 16 Am. & Eng. Enc. Law, 981. The dwelling house in which the plaintiff and her husband lived, and where the

plaintiff received her injury, was 300 or 400 feet from the powder house, and was built before the powder house, but the plaintiff did not occupy it till afterwards. It is suggested that the plaintiff assumed the risk of any explosion. We think not. Campbell v. Seaman (1876) 63 N. Y. 568, 20 Am. Rep. 567; Brady v. Weeks (1848) 3 Barb. (N. Y.) 157; Wood, Nuisances, 3d ed. § 76. The explosion occurred during a thunderstorm. A witness living in that vicinity testified that there was a heavy thunderstorm; that he saw the lightning come down, and then heard the explosion. The court charged the jury that if it was a fact that the magazine was exploded by lightning, that would constitute no defense to the action, if they found that the maintenance in that place of the magazine was a nuisance. This is claimed to be error. We think not. The injury was caused by the explosion. The defendants, at least, were not free from fault which co-operated to produce the result. 1 Am. & Eng. Enc. Law, 2d ed. 595."

This theory of joint and several liability is pointed out in a forceful way by Mr. Justice Paxton in Fow v. Roberts (1885) 108 Pa. 489. The landlord alone was defendant in an action for damages arising out of injuries resulting from the tenant's use of a cesspool as constructed by the landlord, and, after stating the general rule in such cases, the court said: "Applying this principle to the case in hand, it is too clear for argument that the tenant would be responsible to the plaintiff for the flow of the offensive matter upon the premises of the latter. He is responsible for the reason that the act complained of is his. The filth was deposited there by himself, his family, or by others whom he permitted to use the privy. The defendant having demised the premises in question to a tenant, with a cesspool so situated thereon that its use must necessarily result in a nuisance to the plaintiff, we are of opinion that she is liable to the plaintiff. It was urged, however, that it was only for the manner of its use that the well became a nuisance.

We