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it, as was held in Moore v. Parker, Thorpe was actually engaged in 91 N. C. 275, and in Lawton v. Giles, service when the cigarette was sup90 N. C. 374. That rule has been posedly thrown; but he was defendapplied in this state in cases of fire ant's employee. This is admitted. caused by sparks from railroad loco- It is averred that he was employed motives, thus casting upon the rail- by defendant, and was permitted to road the burden of showing due sleep of nights in defendant's faccare. Thompson v. Baltimore & 0. tory, and was knowingly permitted R. Co. 72 W. Va. 555, 78 S. E. 624; to smoke therein. Defendant shows Jacobs v. Baltimore & O. R. Co. 68 that Thorpe smoked in the drying W. Va. 618, 70 S. E. 369; Mills v. room, and he did this notwithstandNorfolk & W. R. Co. 73 W. Va. 93, ing repeated warnings. Why was 79 S. E. 1090. But we know that he warned? Because defendant fires occur frequently through mere knew of the danger. Then, when it accident, and it would ordinarily saw that Thorpe disobeyed its warncast too great a burden in such in- ings, it was its duty to stop his stances to require defendant to show smoking there, and, if necessary, to

lack of negligence discharge him. We do not think presumption.

on his part. Gener- that under these circumstances it

ally the plaintiff can absolve itself from liability by must allege and prove negligence. showing that at the time he is supPlaintiff's counsel says that this posed to have thrown the lighted rule, while it might properly apply cigarettes he was Fire-negllto an action for recovery for de- not actually in its ployee restruction of its cannery,—that is, service, and that it sponsibility. the property which was owned by it had warned him against smoking in when the fire occurred, yet it the building. Defendant owed a ought not to apply to the building, higher duty to plaintiff than to give or portion of the building then un- mere warnings to Thorpe. Had it der lease to the defendant, because not known that he was disobeying it was-defendant's duty to return the instructions, it would have been a property to its landlord in its orig- different situation; but, according inal condition, except for ordinary to its evidence, it was well aware wear and tear, and that view may be

that he was disobedient, and yet correct; but in view of our holding, permitted him to sleep there. The we do not deem it necessary to pass night watchman says he was smokon that question. See 17 Am. Dig. ing at 1 o'clock Sunday morning, 2d Decen. ed. $ 121, title "Negli- and he scolded him for it. If this gence,” and cases cited.

were so, he ought to have put him But let us assume that the fire out of the building. was caused by the negligence of We think the instruction should Thorpe; that he threw a lighted not have been given, as it absolves cigarette into the wastebasket and defendant from all liability for started it; was the court justified Thorpe's negligence, though defendin giving defendant's instruction ant permitted him to remain there No. 8? It reads: “The court in

"The court in knowing him to be disobedient and structs the jury that the witness negligent. In Eaton v. Lancaster, Thorpe is not shown by the evidence 79 Me. 477, 10 Atl. 449, it was held in this case to have been engaged in that the owner of a stable is liable the service of the defendant while to the owner of a horse boarding he was present in its office just prior therein for loss of the horse by fire, to the fire in question in this case, where the night watchman, who had and that the defendant cannot be general charge of the stable, perheld responsible for any act of his mitted two other employees and a at that time which, in the opinion third party to enter the stable while of the jury, caused the fire."

intoxicated and to go up into the It is not charged by plaintiff that hayloft to sleep, and shortly there

(- W. Va.

118 8. E. 521.) after they set the stable on fire. He "There can be no difference in prinknew they were smokers, and car- ciple whether the building has been ried pipes and matches with them. made unsafe by the agencies of He warned them not to go up there, time, weather, or trespass, which it but rather feebly. He did not try was in the power of the owner to to use any force to prevent them. prevent. In any event, and under The court held that, if they were a all these circumstances, it is the dangerous element there, the jury duty of the owner to keep his buildmight properly find that the night ing in" a safe condition. watchman was negligent in not pre- There decedent was killed by the venting their going up there, and, it fall of a building which had become having so found, the judgment was weakened by the gradual stealing of affirmed. Here defendant's super- supports by trespassers. This was intendent and night watchman knew known to defendant; it was bound that Thorpe smoked in the building, to prevent it and was therefore held warned him against it, but still per- liable. We see no difference in mitted him to continue. We think principle in the foregoing cases and the jury might reasonably have the case at bar. Defendant was found that this was negligence, for bound in this case to use proper care which defendant was liable.

to prevent Thorpe from smoking on The rule is thus stated in 1 its premises. So, under the eviThompson on Negligence, § 524: dence, whether the fire was caused “It seems, also, that if the master by spontaneous combustion due to knows that his servants are guilty defendant's negligence, or whether of a certain kind of habitual miscon- it was caused by the negligence of duct dangerous to others who law- defendant's superintendent or night fully frequent the master's prem- watchman in permitting Thorpe to ises, it will be his duty to exercise stay in the dry room at night, with reasonable care to prevent such mis- full knowledge that he was continuconduct,-failing in which he will be ing his habit of smoking there, conliable to anyone injured thereby. trary to their instructions, defendWhen, therefore, the proprietor of a ant might properly be held liable store knew, or might by the exercise for the damage wrought by the fire. of a reasonable supervision of his A point is made that the night business, have known that the cash watchman was hired by plaintiff as boys there employed by him had well as defendant. Plaintiff had no been for months in the habit of control over that part of the premsnapping pins at objects and per- ises leased by defendant. It could sons in the store, and neglected to not direct and determine the care prevent such misconduct, it was held that defendant should take of its that he was liable to the customer property. It had no control of the who lost an eye in consequence of a boy, nor can we say that the night pin being snapped at her by one of watchman was acting on behalf of his cash boys," -citing Swinarton v. plaintiff while he was inspecting deLe Boutillier, 7 Misc. 639, 28 N. Y. fendant's property, or giving or failSupp. 53, affirmed in 148 N. Y. 752, ing to give effective instructions to 43 N. E. 990.

Thorpe; so plaintiff cannot be held In a well-reasoned opinion the responsible for the night watchcourt in that case held: “The pres- man's negligence in failing to stop

ence of a mischiev- the boy's alleged misconduct. That -duty to pro- ous human being on duty devolved solely on defendant. tect against.

premises may con- According to its own evidence, destitute the danger against which the fendant knowingly permitted a law requires of the occupant reason- dangerous agency to remain upon able care to protect his invitee." its premises, under circumstances

In Tucker v. Illinois C. R. Co. 42 which show a want of due regard La. Ann. 114, 7 So. 124, it was held: for its neighbor's and its landlord's rights. It necessarily follows that gone to the jury for that purpose. defendant's instruction No. 8 should It may not be complete, but would not have been given, and likewise it be of considerable benefit. Of was error for the court to modify course, it is not evidence, in the certain of plaintiff's instructions, so proper sense of the term; but witas to exclude defendant's liability nesses should be permitted to use it under the third count. These, with while testifying to show the relative other instructions given on behalf situations of the different parts of of plaintiff, fairly cover its case as the building and persons concerned. made out.

Nor do we understand why Charles We deem it unnecessary to discuss W. Siever should not be permitted those which would put upon defend- to state that he did not know the ant the burden of proof of lack of dangerous condition of the kiln unnegligence with respect to the prop- til after the fire occurred, a fact alerty held by defendant under lease. leged in the declaration; this may We cannot see that, under the facts be immaterial, but we think plaintiff shown in this case, they would in should have been permitted to prove any wise affect the result. The in- it. structions given on behalf of de- Many other errors have been asfendant, inconsistent with the prin- signed, but we have undertaken to ciples herein stated, should on a new discuss only those which need arise trial be rejected.

on a new trial. Plaintiff complains of the rejec- For the foregoing reasons, the tion of certain evidence. We think judgment will be reversed, the verthe map or plat offered to show the dict set aside, and a new trial layout of the buildings should have awarded.


Liability of master for damage to person or property due to servant's smoking.

This annotation is supplemental to hours of employment, so that, if the that in 13 A.L.R. 997.

decision can be sustained, it would The reported case (KEYSER CAN- seem to rest not on the rule respondNING Co. v. KLOTS THROWING CO.

eat superior, but on general considante, 283) goes to a considerable, erations of negligence equally appliand it would seem unwarranted, cable to any person whom the owner length in holding an employer liable of premises permits to go thereon. for the destruction of property by The only other recent case on the the carelessness of an employee in subject is Feeney v. Standard Oil Co. smoking. It is held that a company (1922) 58 Cal. App. 587, 209 Pac. 85, conducting its business in a wooden wherein the court held the employer building amid highly inflammable not to be liable. In that case it apsurroundings, which permits a man peared that an employee of the in its employ to sleep on the premises defendant, in delivering

delivering gasolene, at night, knowing that he is a ciga- spilled several gallons thereof on the rette smoker and is smoking on the floor of the plaintiff's building. Some premises in disobedience of orders, is ten minutes later, while the defendliable for the destruction of adjacent ant's employee was waiting to have property, where a fire is caused by the his delivery tags approved, he lighted act of the employee in throwing a cigarette and dropped the match on a lighted cigarette stub in a waste- the floor, whereby the gasolene prebasket while on the premises at night. viously spilled was ignited and the It seems that the act of the employee building destroyed. The court said: was wholly disconnected with his “It seems clear that the defendant is employment and at a time outside the not responsible for McDonald's negligent act in dropping the lighted match into the gasolene. The lighting of the cigarette was no part of the transaction of the defendant's business. It was an independent act for McDonald's personal enjoyment. It occurred during the time of his transac

tion of the defendant's business, but was no part thereof, and was not in the course of his employment. The fact that defendant had instructed McDonald not to smoke while delivering gasolene does not enter into the problem."

W. A. S.


CITY OF SPOKANE, et al., Appts.

Washington Supreme Court (Dept. 1) - May 15, 1923.

(125 Wash. 72, 215 Pac. 518.) Municipal corporations - ordinance prohibiting auctions - — validity.

1. An ordinance prohibiting the sale of property at auction within a prescribed portion of the business section of a municipality is unreasonable and void.

[See note on this question beginning on page 299.] Courts - judicial questions

calling within a prescribed area of the sonableness of ordinance.

city is a judicial question. 2. The reasonableness of an ordi- (See 19 R. C. L. 805 et seq.; 3 R. C. nance prohibiting the exercise of a L. Supp. 975; 4 R. C. L. Supp. 1291.]

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APPEAL by defendants from a judgment of the Superior Court for Spokane County (Huneke, J.) in favor of plaintiff in an action brought to enjoin the enforcement of an ordinance relating to the business of auctioneering. Affirmed.

The facts are stated in the opinion of the court

Messrs. J. M. Geraghty and Alex Mr. S. Edelstein, for respondent: M. Winston, for appellants:

The ordinance in question is unThe ordinance in question is valid. reasonable and unenforceable. Detamore v. Hindley, 83 Wash. 322, 6 C. J. p. 822; 28 Cyc. p. 368; Re 145 Pac. 462; People ex rel. Schwab Camp, 38 Wash. 393, 80 Pac. 547; V. Grant, 126 N. Y. 473, 27 N. E. 3 McQuillin, Mun. Corp. $ 977; Hayes 964; 6 C. J. 823; Buffalo v. Marion, 13 v. Appleton, 24 Wis. 542; People v. Misc. 639, 34 N. Y. Supp. 945; Min- Gibbs, 186 Mich. 127, 152 N. W. 1053, neota v. Martin, 124 Minn. 498, 51 Ann. Cas. 1917B, 830. L.R.A.(N.S.) 40, 145 N. W. 383, Ann.

Bridges, J., delivered the opinion Cas. 1915B, 812 ; Goytino v. McAleer,

of the court: 4 Cal. App. 655, 88 Pac. 991; Odd Fellows' Cemetery Asso. v. San Fran

The only question in this case is cisco, 140 Cal. 226, 73 Pac. 987; Lins- . the validity of § 11 of Ordinance No. ler v. Booth Undertaking Co. 120 C1590, as amended by Ordinance Wash. 177, 206 Pac. 976; Ex parte No. C2093, of the city of Spokane, Hadacheck, 165 Cal. 416, L.R.A.1916B, which ordinance is with reference to 1248, 132 Pac. 584; Walcher v. First

the business of auctioneering. SecPresby. Church, 76 Okla. 9, 6 A.L.R.

tion 11 reads in part as follows: 1593, 184 Pac. 106; Shepard v. Seattle,

“It shall be unlawful for any per59 Wash. 363, 40 L.R.A.(N.S.) 647, 109 Pac. 1067; Spokane v. Camp, 50

son, firm, company or corporation, Wash. 554, 126 Am. St. Rep. 913, 97

to sell or expose for sale by way of Pac. 770; Walla Walla v. Ferdon, 21

public vendue or auction, except Wash. 308, 57 Pac. 79.

under and by virtue of legal process,


any property, real or personal, with certain principles of law which are in the following described portion of generally recognized by the authorithe city of Spokane, to wit: (Here ties, such as that the selling of propfollows a description of a portion of erty by auction is a lawful business; the business district of Spokane.) that, while such business may be

No auctioneer's license is regulated, being lawful, it cannot be sued in pursuance of this ordinance entirely prohibited; that while the shall be deemed a permit to sell at courts will ordinarily presume that public vendue or auction within said the municipal officials, in enacting prohibited territory."

such an ordinance as this, acted reaOther sections of the ordinance sonably, and that the ordinance has provide for a license to be issued to some relation to the public health, those desiring to sell by auction and safety, convenience, or welfare; yet, prescribe the qualifications of those in the final analy

Courts-judicial entitled thereto. Other sections sis, the reasonablecontrol in great detail the business ness of such an or- sonableness of

ordinance. of auctioneering.

dinance is a judicial The respondent brought this suit question; and that the courts will, to enjoin the officers of the city of without hesitancy, declare invalid Spokane from enforcing against him an ordinance which appears from the ordinance in question, and par- the testimony or upon its face to be ticularly $ 11, a part of which we clearly unreasonable. have above quoted. The testimony No attack is here made upon those has not been brought here, and we provisions of the ordinance which are required to rely upon the court's require one desiring to sell property findings (to which no exceptions at auction to obtain a license and have been taken) for the facts of pay a certain consideration therefor, the case.

From these it appears and which determine the character that the respondent had been en- of the persons to whom such licenses gaged in the retail jewelry business will issue, and which regulate aucin Spokane for a number of years, tions in so far as they are affected and that his store was located within by questions of honorable dealing, the prohibited area, as described in and other similar provisions. It is § 11, above; that for certain reasons here simply contended that the prohe was forced to go out of business vision of the ordinance which absoand to vacate the building which he lutely forbids any public auction occupied, within a definite short pe- within a certain district of the city riod, and that he was desirous of is unreasonable. having an auction sale for the pur- In the case of Detamore v. Hindpose of aiding him in disposing of ley, 83 Wash. 322, 145 Pac. 462, we his stock on hand; that he was not held that the exercise of the police a regular auctioneer, and did not power, ordinarily dwelling only in carry on, and had no intention of the state, had been delegated to mucarrying on, that business; that he nicipalities within the state. Conhad obtained the general auction sequently, there can be no question eer's license provided for in the or- but what the city of Spokane had a dinance in question; but that the right to enact such ordinances as city officials were threatening to ar- reasonably and fairly tend to affect rest him if he had an auction within the health, welfare, convenience, the prohibited district. The trial and safety of the public of that city. court held that the quoted portion No case has been cited, nor has of § 11 of the ordinance was unrea- our independent research found one, sonable, and therefore invalid, and which is directly in point. The folenjoined the city officials from en- lowing are some of those which are forcing it against the respondent. most nearly analogous: Several

In considering this question, it courts have held that a municipality may be advisable to keep in mind may, by ordinance, restrict the op

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