Trask v. Shotwell, and Freeberg v. St. Paul Plow- Works, supra.

At common law the occupier, and not the landlord, is bound, as between himself and the public, so far to keep buildings in repair that they may be safe for the public; and such occupant is prima facie liable to third persons for damages arising from any defect.

Bean v. Green, 4 Cush. 278; Kirby v. Boylston Market Asso. 14 Gray, 250, 74 Am. Dec. 682; Oakham v. Holbrook, 11 Cush. 302; Mellen v. Morrill, 126 Mass. 545, 30 Am. Rep. 695; Leonard v. Storer, 115 Mass. 86, 15 Am. Rep. 76; New York v. Corlies, 2 Sandf. 301; Shipley

from its point of view. The other cases seem to treat the question as one of negligence purely with a more or less strict duty on the part of the owner of the building.

Liability for injury to person on property. A city is not liable for injuries caused by the fall of brick and mortar in a room in one of its public buildings if the accident was the result of causes beyond the control of the city and reasonable time had not elapsed between the time they became dangerous and the accident in which to restore them to safety. Chicago v. O'Brennan, 65 Ill. 160. Where plaintiff as a mere intruder entered the uninclosed premises of a railroad company upon which was a building in a visible state of decay, and while there was injured by a portion of the building blown down by the wind, it was held that he could not recover for the injury, the building not being so situated as to be dangerous to the public. Lary v. Cleveland, C. C. & I. R. Co. 78 Ind. 323, 41 Am. Rep. 572.

Where plaintiff was attending a picnic near a hotel when a storm came up, and he and the other picnickers sought shelter in and about the hotel, and the weight of the crowd carried down a veranda along one side of the building upon the heads of plaintiff and others in a room beneath it, the owner of the building was held not liable, since the plaintiff was at most a mere licensee and defendant was not shown to be guilty of negligence. Converse v. Walker, 30 Hun, 596.

The maintenance of a bowing wall along a passageway from a street to a workshop will render the owner liable for its fall in case it injures a person passing along the passageway, although he is going to the shop for his own pleasure, and not for business. Schilling v. Abernethy, 112 Pa. 437, 56 Am. Rep. 320.

The owner of a building erected for rent, who builds loosely, carelessly, unskilfully, and negligently, is liable for injuries to a third person who is injured by the fall of the building while he is in it for a proper purpose. Godley v. Hagerty, 20 Pa. 387, 59 Am. Dec. 731.

But when the owner has done all in his power to erect a building safe for the purposes for which it is to be used he will not be liable to the owner of property stored on the premises for injuries to it caused by the fall of the building by reason of an occult defect of which he had no notice. Walden v. Finch, 70 Pa. 460.

In Continental S. B. Co. v. Burke, 37 L. ed. 939, plaintiff was injured by falling 15 feet by reason of the giving way of a platform or piazza attached to a building upon hotel property at which a club to which he belonged was holding a picnic. The plaintiff was going to the building with a number of other persons to procure liquors which had been stored there by the picnic committee, and the pi

346.

The owner is not an insurer against the negligence of tenants or the officers of the city or any other party.

Rosenfield v. Newman, supra; Losee v. Buchanan, 51 N. Y. 476, 10 Am. Rep. 623.

Start, Ch. J., delivered the opinion of the court:

Action to recover for personal injuries sustained by the plaintiff's minor son, Charles Ryder, caused by the falling of a brick veneered wall of a building owned by the defendant. On the trial, after the plaintiff had closed his case, the court directed the jury to return a verdict for the defendant, for the reason that

azza gave way under their weight. Defendant claimed that the building was a private office and that none but the committee had a right therein, and that the building was not intended for any such use as plaintiff was putting it to, and that the liquors were stored in the building under the express understanding that only five or six persons should go there at a time. A verdict for plaintiff was affirmed by a divided court.

Persons who conduct a fair and construct buildings for the use of their patrons are liable for injuries to such patrons by the breaking down or fall of such structures if caused by the negligence or unskilful manner of their 'construction. Latham v. Roach, 72 Ill. 179.

And the principle of that case was recognized in Tucker v. Champaign County Agri. Board, 52 Ill. App. 316, in which plaintiff was injured by stepping through a hole in the flooring of a structure erected for the accommodation of patrons.

So, an agricultural society which erects a building for exhibits is liable for injuries caused by the fall of the building which is the result of its failure to exercise ordinary care to make it safe. Brown v. South Kennebec Agri. Soc. 47 Me. 275, 74 Am. Dec. 484.

Agents of the owner of ground upon which an exhibition is to be given, who are given the supervision of the building of a stand for the accommodation of the public, are not individually liable in case it gives way because not sufficiently strong to sustain the crowd, and injures a person who sues for damages. VanAntwerp v. Linton, 89 Hun, 417.

An employer is not liable to his employee for the fall of a floor upon which grain is stored if due care was used in the construction of the building and there was no reason to suppose that it would not sustain the weight which was put upon it. Dillon v. Sixth Ave. R. Co. 16 Jones & S. 283.

Where a platform over which an employee is to draw materials for a mill is permitted to gradually decay until it falls with a load upon it and injures the employee, he may recover from the employer if the defect could have been discovered by reasonable care. Murray v. Usher, 46 Hun, 404.

In Camp v. Church of St. Louis, 7 La. Ann. 325, where one employed by the contractor to do the brick work on a church building was injured by the fall of a tower, a verdict in his favor against both the contractor and the owner of the building was affirmed by a divided court.

The owner of a building in process of construction is liable to a carpenter working on the roof who is injured by the falling of the building caused by the walls being negligently made of insufficient thickness. Giles v. Diamond State Iron Co. (Del.) 6 Cent. Rep. 867.

An employer is liable to his servant for injuries caused by the fall of an outhouse attached to the side of the building during a time that the servant

the plaintiff had failed to establish his cause of action. The plaintiff appeals from an order denying his motion for a new trial.

The plaintiff's evidence tended to establish the following facts: In 1885 the defendant purchased a lot on Fifth street, in the city of St. Paul, upon which stood a one-story brickveneered building, which he has ever since leased for store and office purposes. The last lease made by him was in the spring of 1894 to the present tenants. On June 27, 1894, about midnight, Charles Ryder, nineteen years of age, in company with McMahon, a boy about his own age, was walking along Fifth street, and saw a policeman in front of the building, who was trying to take down a sign therefrom, which hung over the sidewalk. This sign was about 3 feet square, made of oil cloth, with a light wooden frame. It had been suspended by two small iron hooks from a piece of timber, 2x4 inches, extending from the front of the building over the sidewalk, and supported by two guy wires attached to its outer end, and fastened to the sides of the building. It does not appear that it was attached in any way to the part of the wall which fell. The outside hook had become detached from the sign (presumably by a severe storm in the early part of

is in for a proper purpose. Ryan v. Fowler, 24 N. Y. 410, 82 Am. Dec. 315.

The owner of a building who has employed competent builders to errect it, and has accepted it from them, is not liable to a painter who is injured by the fall of a cornice and part of the wall under his weight when he went upon it for a purpose connected with the painting of the building, since the cornice was not intended for such use. Fanjoy v. Seales, 29 Cal. 243.

the evening), so that it hung by the one hook. The policeman informed the young men that he feared the sign would fall upon persons passing, and asked them to assist him in taking it down. They assented, and, after striking and pushing the sign with a stick, the policeman and Ryder raised McMahon up, holding him by the legs, and he gave the sign a twist to detach it from the remaining hook, and at that very instant the whole front of the building above the door and windows fell, crushing Ryder to the sidewalk, breaking his pelvic bone and otherwise seriously injuring him. The building was some 13 feet wide and 15 feet high to the peak of the roof. There was a lintel 8x8 inches over the openings in front, and a 4-inch brick wall, the one that fell, extended above the lintel as high as the peak of the roof. In the rear of this brick wall were six pieces of timber 2x4 inches, fastened together so as to make three pieces 4x4 inches, one at each corner and one in the center; and between these there were studding 2x4 inches, about 2 feet apart. There was no sheeting on the outside of the studding next to the brick, but there was on the inside. The brick-veneered wall was not spiked to the studding or sheeting or an'chored to the frame in the customary manner,

down the remainder of the building, he may be liable to the tenant for injuries to his business by reason of the destruction of the building. McHenry v. Marr, 39 Md. 512.

As to landlord's liability for injury to guest or servant of tenant, see note to McConnell v. Lemley, post, 609.

A city is liable for the fall of a wall which is be

ing built for it, which is caused by the negligent manner in which the work is done, to a workman who is injured by the fall. Mulcairns v. Janesville, 67 Wis. 24.

a heavy body of snow upon the roof. Leavitt v. Fletcher, 10 Allen, 119.

In Anonymous, 11 Mod. 8, it is held that if a lessee

for years build a house on the leased premises and let it fall it is waste, Chief Justice Holt saying: "Every man of common right ought so to support his own house as that it may not be a nuisance to another man's."

A covenant by the tenant of a mill to repair,

The mere fact that the landlord does not disclose that the house is in a ruinous state will not render him liable to the tenant for injuries caused by the fall of the house, unless he knows that the tenant takes the house relying on its being fit for occupation. Keates v. Cadogan, 2 Eng. L. & Eq. 320.

The owner and builder of a storehouse does not by leasing it impliedly warrant that it is fit for the use to which it is to be put so that he will be liable for the damage in case it falls under the weight placed therein. Dutton v. Gerrish, 9 Cush. 89, 55 Am. Dec. 45.

of its own defective construction. Hess v. Newcover the case of the fall of the mill in consequence comer, 7 Md. 325.

If a tenant uses a building in what is apparently its character and to the purpose for which it was a reasonable and proper manner having regard to intended to be used, and it falls under the weight of the goods stored therein, he is not liable for waste. Manchester Bonded Warehouse Co. v. Carr, L. R. 5 C. P. Div. 507, 49 L. J. C. P. N. S. 809, 43L. T. N. S. 476, 29 Week. Rep. 354, 45 J. P. 7; Sanger v. Bilton, L. R. 7 Ch. Div. 815, 47 L. J. Ch. N. S. 267, 38 L. T. N. S. 281, 26 Week. Rep. 394.

Illegal building.

But if a landlord undertakes to rebuild a wall which has become unsafe by reason of building operations carried on by an adjoining owner, and the wall is built so negligently that it falls carrying

241.

Walker v. McMillan, 6 Can. S. C. Liability of firemen.

A stack of chimneys belonging to a house close to a highway, which by reason of a fire were in immediate danger of falling into the highway, were thrown down by some firemen, and it was held that they were not liable for injuries unavoidably

57 N. Y. 567, 15 Am. Rep. 530; 1 Shearm. & Redf. Neg. 59, 60; 2 Thomp. Neg. 1231.

In the case under consideration, the evidence as to what was done by the plaintiff and those with him in taking down the small, light sign from the building in question would certainly justify the jury in finding that such act was not an adequate cause for the falling of the wall. The presumption then would be, in the absence of explanatory circumstances, that the wall fell because it was in an unsafe condition, and that the defendant was negligent in not exercising ordinary care in properly inspecting and keeping it in repair. But it is only in the absence of explanatory circumstances as to the cause of the fall of a building that the presumption of negligence on the part of the owner is presumed prima facie. Therefore, where such explanatory circumstances are given in evidence, and the cause of the fall of the building is established, and there is nothing in the evidence tending to connect such cause with the owner's negligence, the burden rests upon the party asserting such negligence to give evidence tending to show that such cause might have been discovered and removed by the exercise of ordinary care on the part of the owner. The cause of the fall of the wall is clearly established in this case. It fell because of a defect in its construction, in that it was not supported in the usual manner. This was readily discovered after the accident, when the bricks were on the sidewalk, and the manner of constructing the wall was exposed. It is easy to be wise after the fact, but the question is, Did the defendant know, or might he have known, by the exercise of ordinary care, before the accident, of the defect in the construction? If so, he would have been clearly negligent in the premises. But he did not build the wall, and there is no evidence in the case that there was anything in the external appearance of the building indicating its defective construction. On the contrary, it affirmatively appears by the uncontradicted evidence that the defect in

Neither

the construction was a concealed one. is there any evidence in the case tending to show that the defect could have been discovered by the exercise of ordinary care in inspecting the building. The prima facie presumption arising from the undisputed facts is that the defect could not have been discovered by the exercise of such care; for the sheeting on the inside of the studding and the brick wall on the outside of them concealed the defect, and the absence of sheeting next to the brick wall and the anchoring of it to the sheeting by the large nails could not have been discovered by any means disclosed by the evidence, except by the exercise of extraordinary care in inspecting the building, by making openings in the sheeting or wall to discover whether or not the wall was properly supported. Ordinary, not extraordinary, care, was the measure of the defendant's duty in the premises. No importance can be attached to the fact that the large sign was fastened to the brick wall, for, assuming that the wall was properly constructed, it could not be negligence to fasten the sign to it, and there was nothing about the sign or the manner in which it was attached to the wall to indicate the latent defect in the wall. Upon the whole record, we are satisfied that the presumption of negligence arising from the mere fact that the wall fell was rebutted by the explanatory circumstances disclosed by the evidence, showing the cause of its fall, and that the defect was a latent one; and that, in the absence of any evidence disclosing any fact or circumstance from which it might be reasonably inferred that such defect could have been discovered by the exercise of ordinary care on the part of the defendant, the question of his negligence is not one admitting of a fair doubt, and that the jury were correctly instructed to return a verdict for him. Any other rule would practically make owners of buildings insurers of their safety. Order affirmed.

MCCANN,

v.

PHILADELPHIA & READING RAILROAD COMPANY, Appt.

(177 Pa. 292.)

1. Power to assess railroad real estate for local improvements is conferred by a statute for the equalization of the public

burden, which provides that railroad property,

with certain exceptions, shall be subject to "taxa.

tion by ordinances for city purposes." 2. A strip of land 1,500 feet wide along a river bank, and used by a railroad company as a coal and ore terminal, is not all exempt from taxation as roadbed although a large part of it is covered with tracks.

NOTE.-For the liability of a railroad right of way to assessments for local improvements, see

road company as a coal and ore terminal may be sold to satisfy a tax lien, but the purchaser will take subject to the easement of the company to operate its tracks over the property.

(Mitchell, J., dissents.)

(October 5, 1896.)

the Court of Common Pleas, No. 4, for PPEAL by defendant from a judgment of Philadelphia County in favor of plaintiff in a proceeding brought to enforce a lien for assessments for the construction of a sewer. Affirmed.

The facts are stated in the opinion.

Mr. Thomas Hart, Jr., for appellant: The roadbed of a railroad company is not

note to Chicago, M. & St. P. R. Co. v. Milwaukee (Wis.) 28 L. R. A. 229.

Philadelphia v. Philadelphia, W. & B. R. Co. 33 Pa. 41; Junction R. Co. v. Philadelphia, 88 Pa. 424.

There is no distinction now recognized between the parts of a railroad, the title to which has been acquired in fee, and those parts required by condemnation, the title of the railroad company being considered to be practically the same in both cases.

Pennsylvania 8. V. R. Co. v. Reading Paper Mills, 149 Pa. 18; Pittsburgh, Ft. W. & C. R. Co. v. Peet, 152 Pa. 488, 19 L. R. A. 467. The word "railroad" includes, ex vi termini, sidings, etc.

Philadelphia, W. & B. R. Co. v. Williams, 54 Pa. 103; Cleveland & P. R. Co. v. Speer, 56 Pa. 325, 94 Am. Dec. 84; Black v. Philadelphia & R. R. Co. 58 Pa. 249; Getz's Appeal, 10 W. N. C. 453.

There is absolutely no difference in fact or in law between the railroad west of Richmond street and that east thereof, except that the latter part is longer, different in shape, has more tracks, that they spread out instead of remaining parallel, and that trains come to a stop and unload into vessels instead of merely passing along to destination.

Defendant's property is not liable, because the statutes relating to the imposition of assessments for local improvements never contemplated making such property liable.

It was very early decided that a railroad or a canal and its necessary appurtenant works were not taxable as "land" or "real estate."

Lehigh Coal & N. Co. v. Northampton County, 8 Watts & S. 334; Railroad Co. v. Berks County, 6 Pa. 70; Delaware & H. Canal Co. v. Wayne County Comrs. 15 Pa. 351; Northampton County v. Lehigh Coal & N. Co. 75 Pa. 461; Pennsylvania & N. Y. Canal & R. Co. v. Vandyke, 137 Pa. 249; East Pennsylvania R. Co.'s Case, 1 Walk. (Pa.) 428; Northumberland County v. Philadelphia & E. R. Co. 20 W. N. C. 381.

Aside from the act of April 21, 1858, new Purd. Dig. 1467. pl. 392, it cannot be questioned that the defendant's lots liened in these cases would not be subject to state or munici pal taxation.

There is in this act no legislative intention to make such property liable to municipal assess

ments.

A liability of this kind is not "taxation" as ordinarily understood and in the sense used in this act.

Northern Liberties v. St. John's Church, 13 Pa. 104; Pray v. Northern Liberties, 31 Pa. 69; Re Washington Avenue, 69 Pa. 352, 8 Am. Rep. 255; Olive Cemetery Co. v. Philadelphia, 93 Pa. 129, 39 Am. Rep. 732; Greensburg v. Young, 53 Pa. 280; Erie v. First Univ. Church, 14 W. N. C. 232.

Taxation for municipal purposes and charges by municipal assessment are entirely different things.

Mount Pleasant v. Baltimore & O. R. Co. 138 Pa. 371, 11 L. R. A. 520; Pettibone v. Smith, 150 Pa. 126, 17 L. R. A. 423; Sewickley M. E. Church's Appeal, 165 Pa. 477; Illinois

Railroad property is by the act of 1858 made liable to taxation by ordinances for city purposes," and such kind of taxation only.

"For city purposes," means the various purposes mentioned and included in the annual tax rate.

Pennsylvania R. Co. v. Pittsburgh, 104 Pa. 522; Lehigh Coal & N. Co. v. Northampton County, 8 Watts & S. 337.

Inability to enforce the lien is a sufficient reason why it should not be declared.

Philadelphia v. Philadelphia, W. & B. R. Co. 33 Pa. 41; Re Opening of Berks Street, 12 W. N. C. 10; Re Center Street, 115 Pa. 247; Re Chestnut Avenue, 3 Phila. 265; Philadelphia & R. T. R. Co.'s Appeal, 1 Super. Ct. (Pa.) 63.

If the lien in the case now before the court can be sustained, of course the property liened ought to be able to be sold and title passed to the purchaser, but that cannot be.

The property and franchises of a corporation cannot be sold piecemeal under executions.

Graham v. Pennsylvania & 0. Canal Co. 3 Pittsb.341; Susquehanna Canal Co.v. Bonham, 9 Watts & S. 27, 42 Am. Dec. 315; Bayard's Appeal, 72 Pa. 453; Longstreth v. Philadelphia & R. R. Co. 11 W. N. Č. 309; Com. v. Susque-, hanna & D. R. R. Co. 122 Pa. 306, 1 L. R. A. 225.

Lands necessary for the enjoyment and exercise of a corporate franchise are parts of it, and cannot be levied on apart from it.

Plymouth R. Co. v. Colwell, 39 Pa. 337, 80 Am. Dec. 526; Shamokin Valley R. Co. v. Livermore, 47 Pa. 465, 86 Am. Dec. 552.

A railroad with its right of way, enbankments, excavations, iron rails, switches, depots, engine house, etc., is, in a certain sense an entirety, extending from one terminus to the other.

Dubuque v. Chicago, D. & M. R. Co. 47 Iowa, 202; Elizabethtown & P. R. Co. v. Elizabethtown, 12 Bush, 238; Porter v. Rockford, R. I. & St. L. R. Co. 76 Ill. 584.

Mr. John M. Ridings for appellee.

Dean, J., delivered the opinion of the court: The defendant is the owner of a large lot of ground in the city of Philadelphia, fronting on Richmond street about 1,547 feet, and extending back to the port warden's line on the Delaware river. Against this property the city filed a municipal lien for part of the cost of constructing a sewer on Richmond street, between Cumberland and William streets. Scire facias was issued on the lien, to which defendant made affidavit of defense, of which this is the material averment: "The said large lot of ground is entirely and exclusively used as the tide water coal and iron ore terminal of the Philadelphia & Reading Railroad Company. As appears by the said plan, which is an accurate representation of the place, it is covered throughout with a great number of diverging railroad tracks, the said main line entering the property near Somerset street, and spreading out and running to the ends of the wharves, some twenty in number, whereby coal is shipped into vessels for export, and iron ore is re