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lant. It was incumbent upon the

Highwaysduty with respect to glass window.


defendant to give such inspection as is reasonably required in order to guard against the dangerous effects of deterioration from natural causHoward v. Redden, 93 Conn. 604, 609, 7 A.L.R. 198, 107 Atl. 509. Such inspection must be frequent and thorough enough to determine the existing conditions. 29 Cyc. 473; 1 Thomp. Neg. 1213, 1214. The facts found obviously do not constitute a compliance with this, duty. It is common knowledge that show windows such as this are usually frequently washed, both inside and out, an operation calculated to disclose any patent defects or lack of repair, but we have, regarding the window under consideration, no finding as to such washing and observations, if any, made either during that process or at any other time.

The circumstances attending the injury made appropriate the appli

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cation of the doctrine of res ipsa loquitur, and the correctly SO


Stebel v. Connecticut Co. 90 Conn. 24, 96 Atl. 171, 13 N. C. C. A. 246. It was therefore incumbent upon the defendant to show that the fall of the glass and resulting proof-absence injury did not occur through negligence on its part. Potter Rorabaugh-Wiley Dry

-burden of of negligence.

Goods Co. 83 Kan. 712, 32 L.R.A. (N.S.) 45, 112 Pac. 613; Vincett v. Cook, 4 Hun, 318; 20 R. C. L. p. 78. It was peculiarly within the power of the defendant to establish that the care required had been used in maintaining as well as in constructing the window, but the facts found fall short of disclosing a sufficient compliance with this duty; on the contrary, they show that the defendant has not complied with its duty of inspection. It follows that the judgment, when deprived of the support of the inferences and conclusions which we have held to be

untenable, cannot stand.

There is error, and a new trial is ordered.

All concur.


Liability for injury to person in street by glass falling from window or door.

[Highways and Streets, §§ 177, 1861.]

Generally as to liability for injury to person in street by fall of part of structure of completed building, see annotation in 7 A.L.R. 204 [Highways and Streets, 177].

In the reported case (FEENEY V. NEW YORK WAIST HOUSE, ante, 1539), an action for damages for personal injuries resulting from glass falling from a show window of a store occupied by the defendant, it is held that the defendant was not entitled to be exonerated from liability on the theory of an act of God consisting of a windstorm, the only indication of the severity of which was that a number of other lights of glass in the vicinity were blown out during the same

storm; that the circumstances attending the injury made appropriate the application of the doctrine of res ipsa loquitur, making it incumbent on the defendant to show that the fall of the glass and the resulting injury did not occur through negligence on its part; that the defendant had failed to establish that the necessary care had been used in maintaining as well as in constructing the window, but, on the contrary, the evidence showed that the defendant had not complied with its duty of inspection; and hence that a judgment for the defendant should be reversed and a new trial ordered.

In Sinkovitz v. Peters Land Co. (1909) 5 Ga. App. 788, 64 S. E. 93, the

court held that the plaintiff had established a prima facie case of negligence, and that the doctrine of res ipsa loquitur should be applied as against the defendant, where it appeared that the plaintiff, lawfully walking on the street in front of the defendant's building, was struck and suffered personal injury from a fall of glass from one of the windows during a heavy windstorm. The plaintiff alleged that the defendant had failed to use proper flat springs to reinforce the putty, and to use glass thick enough and tough enough to withstand such windstorms and flurries as were to be expected in that locality. According to the court defendant failed to show due care or act of God which would relieve the liability. The court said that it was the duty of the owner of a building abutting on a public highway to keep it from being a source of danger to the public; that although such an owner is not an insurer of the safety of those who pass on the sidewalk below, he is bound to exercise reasonable care to maintain the premises, including the windows, in a safe condition; that the evidence in the case at bar showed that a pane of glass, without any reasonable cause, fell from a window of the defendant's building and injured the plaintiff lawfully on the sidewalk below, and that, since panes of glass do not ordinarily fall from windows unless improperly installed or in need of repair after lapse of time, the facts produced by the plaintiff established a prima facie case of negligence for which the defendant was liable. In conclusion the court said that the doctrine of res ipsa loquitur applied, rendering such negligence a question of fact for the jury, who might have inferred that the window had never been properly installed, or that the windowpane was defective, and not capable of sustaining the force of winds such as were usual in the locality in question, or, on the other hand, might have found that the falling glass was due to an unusual hurricane.

In Detzur v. B. Stroh Brewing Co. (1899) 119 Mich. 282, 44 L.R.A. 500, 77 N. W. 948, 5 Am. Neg. Rep. 371, it

was held that the owner of a building abutting on a public street was liable for personal injuries sustained by a person on the street, struck by glass falling from a window of the building. There was some evidence that the windowpane, prior to the accident, was seen to have a hole in it, and was heard to rattle in its frame. There was no evidence of an unusually high wind. The court said that the circumstances were consistent with the plaintiff's theory, and sustained the inference that the injury resulted from a careless disregard of the broken and loosened condition of the glass in the window, some 50 feet above the public sidewalk where pedestrians were frequently passing. In conclusion the court said: "The negligence complained of is the maintenance of a window in such a condition that the glass was liable to fall out; not necessarily from its own weight, but under the natural conditions and strain to which it was likely to be subjected. It might not be negligent to leave a broken pane, if assurance could be given that it would be undisturbed by wind or by But wind is an everyday occurrence. It is a condition, not necessarily a cause, and one which should be taken into consideration before determining that a broken glass is not likely to fall. The wind may have been a concurring circumstance, but it cannot be said to have been the proximate cause, and the broken glass the remote cause. It cannot be true that a defendant who is liable if a defective glass falls from its own weight on a quiet day is to be relieved from responsibility because its fall is due to the pressure of a wind which should have been anticipated."


Where a complaint alleged that the plaintiff, while walking along the public street in front of the defendant's three-story building, sustained personal injuries by being struck by pieces. of window glass which fell from one of the windows of the building, due to negligent failure to repair loosened windowpanes, the court held that a cause of action was stated against the defendant. Bannigan v. Woodbury

(1909) 158 Mich. 206, 133 Am. St. Rep. 371, 122 N. W. 531.

The decision in Pearson v. Ehrich (1912) 148 App. Div. 680, 133 N. Y. Supp. 273, was to the effect that a prima facie case of negligence was established against the owner of a building abutting on a public street, where it appeared that a pedestrian on the street sustained personal injuries from glass which fell from one of the windows of the building. The court, in support of this view, said that the facts were sufficient to establish a prima facie case of negligence, so that the defendant was called on to explain the circumstances or otherwise establish freedom from liability. The court reasoned that, when the rule of res ipsa loquitur applied, as in the case at hand, the fact of the accident and the attendant circumstances, without further proof of the cause, warranted the inference of negligence, so that the plaintiff might rest thereon, and that accordingly the complaint should not have been dismissed.

In Ferrier v. Trepannier (1895) 24 Can. S. C. 86, the owner of a building abutting on a public highway was held to be liable for damages for the death of a pedestrian on the street, where it appeared that a third-story window and frame fell and caused the accident, due to the owner's failure of his absolute duty of inspection and repair of his premises overhanging the public street.

But it was held in Hopman v. Reinhardt (1917) 164 N. Y. Supp. 676, that the landlord of premises abutting on a street, having leased it to a tenant, had no such control as to be liable for personal injuries suffered by a pedestrian from glass which fell from a window on the premises.


In Rice v. White (1922) 239 S. W. 141, 21 N. C. C. A. 807, it was held that, where a pedestrian lawfully on the street was struck, and sustained personal injuries, by glass which fell from an upper window of a building abutting on the street, the municipality, having no duty to enter on abutting premises and to examine closely windowpanes and other parts of the buildings liable to become dangerous to the public, could not be held liable, and that the owner of the premises, having given a long-term lease to a tenant and having no possession of the premises, could not be held liable, on failure of the evidence to show specific acts of negligence. The court said: "To hold the city liable it must have appeared that such windowpane was not only insecurely fastened, but had become loose, and that knowledge of such condition was known to the city or its agents, or, upon a proper inspection, might have been known to them. . . As to codefendant White, it was shown that the second and third stories of the building in question were leased to Miss Hart; that she had possession and full control thereof, and that it was her duty to keep said property in repair. No liability could accrue against the owner of the property, for, in the absence of contract to that effect, the landlord is under no obligation to repair. . . . It is the duty of those in actual charge and occupancy of property to keep it in condition. Evidence negatives the theory that the pane fell because of insecure or defective fastenings. If broken out by somebody or through an agency not under the control of defendants, no liability would accrue against them or either of them."

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R. E. La G.

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Appearance in, see APPEARANCE.

Bill or note, action on, see BILLS AND

Contracts, actions on, generally, see CON-


Costs, see COSTS AND FEES.

Death, matters peculiar to action for, see

Ejectment action, see EJECTMENT.
Evidence, see EVIDENCE.

Infants, actions by or against, see IN-


Injunction suit, see INJUNCTION.

Insurance actions, see INSURANCE.

Judgment, see JUDGMENT.

Jury, see JURY.

Libel or slander action, see LIBEL AND

Limitation of time for action, see LIMITA-

The dash in each citation stands for A.L.R.


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Admiralty, defenses to actions in, see AD-

Bill or note, defense in action on, see

Contract, right to set up illegality as de-
fense, see CONTRACTS.

Conversion, defenses to liability for, see
Corporation's right to set up illegality of

act in defense of liability resulting
therefrom, see CORPORATIONS.

Death, defenses peculiar to action for, see

Libel or slander suit, defenses in, see LIBEL

Money had and received, defenses in ac-
tion for, see ASSUMPSIT.
Mortgage foreclosure, defenses to, see

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Conclusiveness of ruling on demurrer, see


Contributory negligence as defense to an
action for death on waters within
jurisdiction of admiralty. 50-455
(case p. 445).


Food, see FOOD.


Adverse possession of railroad right of
way. 50-303 (case p. 300).


Vendee's right to acquire, see VENDOR AND


Deed, right of child en ventre sa mere to
take under, see DEEDS.

Will, right of child en ventre sa mere to
take under, see WILLS.


Infant's estoppel by misrepresentations as
to his age, see INFANTS.

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State statute giving right of action for
death, limitations on enforcement of
recovery in admiralty under. 50-445.


Easement, see EASEMENTS.

Nuisance by alteration of building, see

Italic type indicates points with annotation; roman type points without.

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