Simonton v. Loring.

hall and its appurtenances; and if anybody is liable for the injury caused by the overflow, they are; unless the faucet was left open or the efflux obstructed, or, in other words, unless the overflow was caused, by some stranger and without the consent of the defendants. Lowell v. Spaulding, 4 Cush. 277; Kirby v. Boylston Association, 14 Gray, 249; Leonard v. Storer, 115 Mass. 86; s. C., 15 Am. Rep. 76; Shipley v. Fifty Associates, 101 Mass. 251; 3 Am. Rep. 346; s. c., 106 Mass. 194; 8 Am. Rep. 318; Gray v. Boston Gas-light Co., 114 Mass. 149, 153; s. c., 19 Am. Rep. 324, 327.

What is the rule regulating the liability of persons having the possession, control and management of tenements supplied with water as this was? The plaintiffs contend, inter alia, that the defendants were bound at their peril absolutely to prevent injury to others by the escape of the water, upon the principles enunciated by the English courts in Fletcher v. Rylands, L. R., 1 Exch. 265; s. c., L. R., 3 H. of L.330; Smith v. Fletcher, 7 Exch. 305; Nichols v. Marshland, L. R., 2 Exch. Div. (C. A.) 1. This doctrine has received a quasi approval in Ball v. Nye, 99 Mass. 582; Wilson v. New Bedford, 108 id. 261, 266; s. c., 11 Am. Rep. 352, 356; while it has been criticised in Swett v. Cutts, 50 N. H. 439; s. c., 9 Am. Rep. 276; Brown v. Collins, 53 N. H. 442; s. c., 16 Am. Rep. 372; and utterly denied in Losee v. Buchanan, 51 N. Y. 476, 486; s. c., 10 Am. Rep. 623, 632. Whether the same principles will be applied by this court to similar circumstances we need not stop to inquire until such an occasion presents itself.

The cases holding that such a dangerous thing as fire may be lawfully used on one's premises are too numerous to need citation; and the person using it is only charged with ordinary care in its use. By the ancient common law, the owner of a house on fire was liable to one injured thereby, on the ground that the tire originated through some presumed negligence of the owner, not susceptible of proof. The hardship of this rule was corrected by Stat. 6 Anne, ch. 31. Every person has a right to kindle a fire on his premises for the purposes of husbandry, and the law imposes upon him the exercise of ordinary care, negligence being the gist of the action for an injury occasioned by the spreading of such a fire. Bachelder v. Heagan, 18 Me. 32; Hewey v. Nourse. 54 id. 256.

The same may be said in relation to the use of gas. See, among other cases, Holly v. Boston Gas-light Co., 8 Gray. 123; Hunt v.

Simonton v. Loring.

Lowell Gas-light Co., 1 Allen, 343. Thus it is said in Holly v. Boston Gas-light Co.: It is the duty of gas companies "to conduct their whole business, in all its branches, and in every particular, with ordinary prudence and care."

The rule of ordinary care affords reasonable freedom in the use as well as reasonable security in the protection of property. For the degree of care which this rule imposes must be in proportion to the extent of injury which will be likely to result should it prove insufficient. In other words, ordinary care depends wholly upon the particular facts of each case-the degree of caution and diligence rising, conforming to and being commensurate with the exigencies which call for its exercise. It must be equal to the occasion on which it is to be used, and is always to be judged of according to the subject-matter, the force and dangerous nature of the material under one's charge. Holly v. Boston Gas-light Co., supra.

Negligence, which is the want or absence of ordinary care, seems to have been the gist of all the actions, like the one at bar, which have come under our observation. Shearman and Redf. on Negl., §§ 512, 513, and notes. Thus in Moore v. Goedel, 34 N. Y. 527, 530, for an injury caused by an overflow of water, the court say: "In such a case, where the ocupation and right to use the water fixtures are exclusive, the party is responsible for their proper use and proper care; and liability attaches on proof that negligence has occurred and damage has ensued."

Applying this principle to the facts as we believe them to be from a careful examination of the testimony, our conclusion is that the plaintiffs are entitled to judgment and should be compensated for their loss. For, although the pipe which supplied the water was only one-third as large as the waste-pipe, the amount of water which passed through it at any time depended upon the head and consequent pressure. The plumber testified that "if no cigar-stump, tobacco-quid or other obstruction got into the bowl, with an ordinary pressure of water, it would not run over;" but "you could get pressure enough to run it over;" that the greatest pressure came nights, and we might add Saturday nights when all the stores and other places of business were closed. And if the self-acting stop-cock had been put in just before, instead of soon after the time of the overflow, there would have been no occasion for this action.

Simonton v. Loring.

But, even if ordinary care did not require a self-acting cock, we believe the overflow was caused by the negligence of the janitor. To be sure, he testifies that when he used the urinal Friday night he turned off the water and locked the door; that he was there again Saturday in the forenoon, when he supposed there was no water running, although he made no particular examination. And, while he may be sincere, we think he was mistaken. He had the only key to the closet. So far as the testimony discloses, he was the last person to use it and was the last person who saw it. We cannot escape the conviction that he accidentally left the cock open.

Judgment for the plaintiff, for $520, and interest from June 20, 1875.

APPLETON, C. J., WALTON, BARROWS, PETERS and LIBBEY, JJ., concurred.

NOTE BY THE REPORTER. —The cases cited in the second paragraph of the above opinion merely go to the question of liability as between the landlord and the tenant, whose negligence produces the injury, except the last case Gray v. Boston Gas-light Co., which held that the owner of a building, to the chimney of which a gas company has, without the owner's consent, so affixed a wire as to render the chimney unsafe, and ultimately to cause its fall upon a passer-by, may be liable for the damage so caused, and if when so liable he pays the damage, he has an action against the company for indemnity.

As to the general liability of the owner of dangerous premises, see note to McAlpin v. Powell, 26 Am. Rep. 562. The doctrine of Fletcher v. Rylands is not involved in the principal case because the defendants were shown to be guilty of negligence, and the question of liability at all hazards did not arise. See, also, Phelps v. Nowland, post.

The remark quoted from Moore v. Goedel, 34 N. Y. 530, is obiter; the point decided being that where premises are occupied in common by the parties, no presumption arises that the overflow was the result of the defendant's neglect, and it is incumbent on the plaintiff to show that the defendant's negligence caused the overflow, before he can recover.

In Robbins v. Mount, 4 Robt. 553, the landlord of a building used for commercial purposes, and leased to a number of separate tenants, provided a janitor for the building, who was paid by the tenants in proportion to the space occupied by each. A faucet was left running in the room of an upper tenant one night, into a urinal partly choked up with tobacco, and without any outlet except that upon the floor, and the plaintiffs, who were tenants below, suffered great damage. The evidence indicated that the faucet was left open by the janitor's servant, after he had cleaned the rooms of the tenant in whose premises it was situated. A verdict against the landlord was set aside, on the ground that the janitor was, as to this, the tenant's servant; and the evidence showing that the urinal was such as was in common use when it was adopted, it was not negligence in the landlord not to exchange it for one invented subsequently, which was not liable to be choked up by things thrown into it.

In Ortmayer v. Johnson, 45 Ill. 469, the plaintiffs occupied the first story and basement, and the defendant the second story, of the same building. The building was supplied with water by a main in the alley in the rear, whence it was taken to the second story, and to a basin in the basement and a water-closet under the sidewalk in the rear. The two last were under the control of the plaintiff. Some leakage having occurred from the second story, to plaintiff's damage, the plaintiff proposed to defendant to insert a stop-cock in the basement in the pipe leading from the main, so as to cut off the water from the second story and from the plaintiff's wash-basin. This was designed to prevent the freezing and

Simonton v. Loring.

bursting of pipes. The arrangement was assented to by defendant. It compelled him to go to the basement for his water, but as an equivalent the plaintiff was to see the stopcock turned off at night, and give defendant the use of the water-closet. The plaintiff swore that he was to take charge of the stop-cock only during frosty weather; the defendant swore that he was to do so all the time. In August, the stop-cock having been left open, the water rose to the second story, and the faucet there having been left open, overflowed, leaked through to the plaintiff's premises, and damaged his goods, for which he brought suit. The court charged that unless the plaintiff agreed to turn the stop-cock off every night, or if the agreement extended only to frosty weather, his omission was not a want of ordinary care and prudence. The plaintiff had a verdict. This was reversed, the court holding that such omission was contributive negligence, independent of any agreement, under the circumstances, the plaintiff having control of the basement, and having continued to take care of the stop-cock after frosty weather, and without notifying defend ant that he should cease to do so.

The upper story of a building had water introduced in it, with a vent by a spigot, which was entirely under the control of the occupant of that story. Held, that a duty lay upon him to take care that the spigot should not be left open so as to flood those below. A per. son, although not in the employ of the occupant, coming to the room and using the water by his permission, was not a trespasser, and it was negligence in the occupant not to see to the condition of the spigot before the store was closed. "A duty lay upon him to take care that so dangerous a thing, as this stop-cock was under the circumstances, should not be left open to flood the store of his neighbor below stairs." Killion v. Power, 51 Penn. St. 429. The plaintiffs hired of a defendant the ground floor of a warehouse, the upper part of which was occupied by the defendant himself. The water from the roof was collected by gutters into a box from which it was discharged by a pipe into the drains. A hole was made in the box by a rat, through which the water entered the warehouse and wetted the plaintiff's goods. The defendant had used reasonable care în examining and seeing to the security of the gutters and the box. In an action by the plaintiffs against the defendant for the damage so caused, held, that the defendant was not liable, either on the ground of an implied contract, or on the ground that he had brought the water to the place from which it entered the warehouse. Carstairs v. Taylor, L. R., 6 Ex. 217. KELLY, C. B., distinguishes Rylands v. Fletcher, on the ground that the consequence there was necessary and inevitable from what the defendant did, while here it was “vis major, as much as if a thief had broken a hole in attempting to enter the house, or a flash of lightning, or a hurricane had caused the rent." BRAMWELL, B., distinguishes Rylands v. Fletcher, on the ground that there "the defendant, for his own purposes, conducted the water to the place from which it got into the plaintiff's premises. Here the conducting of the water was no more for the benefit of the defendant than of the plaintiffs. If they had been adjacent owners, it would have been for the benefit of the adjacent owner that the water from his roof was collected, and the case would have been within the decision in Rylands v. Fletcher but here the roof was the common protection of both, and the water running from it was also for their joint benefit." MARTIN, B., says: "The decision in Rylands v. Fletcher has really no bearing on the case; it referred only to the acts of adjoining owners of land." KELLY, C. B., also distinguishes the case of rats in a vessel, saying “it may be possible to insure freedom from rats in a vessel; but it is impossible to say with respect to warehouses generally that this can be done."

Blyth v. Birmingham Water Works Co., 11 Ex. 781, cited in Cooley on Torts, 631, note, is hardly in point. It holds that a water company, having observed the directions of the act of Parliament in laying their pipes, and properly constructed fire-plugs as safety-valves in the pipes, is not liable for not removing an accumulation of ice in a street over such a plug, whereby the water forced its way into plaintiff's house, such accumulation being caused by a winter of extreme and unanticipated severity.

In an action for injury sustained by the goods of a tenant who occupied part of a building, caused by the negligence of the landlord who occupied the rest of the building, in not keeping a waste-pipe which was in his charge in repair, there was evidence that the floor of the plaintiff's premises was not level, and that the water flowed down the incline to the goods. The defendant asked the judge to instruct the jury that he was not liable if there was any negligence on the part of the plaintiff in not looking after the wasteVOL. XXVIII - - 5

Hardy v. Tilton.

pipe, or if the fact that the floor was not level caused any additional damage. The judge refused to give these instructions, and instructed the jury that for injuries arising from the plaintiff, nor taking reasonable precaution to prevent injury, when he had reasonable cause to believe that such precaution was reasonably necessary to avoid damage to his property, the defendant was not liable. Held, that defendant had no ground of exception. Priest v. Nichols, 116 Mass. 401.

HARDY V. TILTON.

(68 Me. 195.)

Levy on money in hands of sheriff.

Money collected by an officer on legal process, while it remains in his hands, is to be regarded as in custodia legis and not the subject of levy or attachment in any form. Thus, an officer, who has collected money on an execution, cannot apply it in satisfaction of another execution, although the latter is against the party for whom the money was collected, and both executions are in the officer's hands for collection at the same time. (See note, p. 35.)

ASE against the sheriff for the misfeasance of his deputy, Jeremiah J. Walker, in not paying over money collected on an execution.

The defendant pleaded the general issue, with a brief statement that his deputy, Walker, paid over to the plaintiff the money collected on the execution with the exception of $39.6. which said. money, then in his hands as deputy sheriff, he, in his said capacity, had taken as the property of the estate of the said Warren Hardy, deceased, on an execution then in his hands for collection, in favor of Micah W. Norton, and against the plaintiff, to satisfy said execution, and his fees thereon; and that Walker applied the $39.63 to the satisfaction of said execution, and his fees, and returned the execution fully satisfied. The parties introduced documentary evidence in support of their respective allegations; upon which the presiding justice ruled that the defense was not made out; and the defendant alleged exceptions.

A. H. Ware, for defendant.

S. J. & L. L. Walton, for plaintiff.