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The effect of a license or permit from the municipality to maintain a vault underneath the public sidewalk, and a coal or scuttle-hole opening thereinto, is to modify the owner's liability for injuries to strangers from that of an insurer to one depending upon the degree of care used in the construction of the premises or in their maintenance while in his possession. Babbage v. Powers, 130 N. Y. 281; Wolf v. Kilpatrick, 101 id. 146.
It is the duty of the tenant or person in occupation, possession and control of a tenement to maintain it in a safe and secure condition; and the landlord or owner is not liable for injuries sustained by third persons by reason of such defective or dangerous condition, unless (a) the landlord covenanted to make repairs or maintain the premises in a safe condition; or (b) the defective or dangerous condition by which the injury is occasioned existed at the time of the demise; or (c) the premises in their original construction constituted a nuisance. Platt v. Farney, 16 Ill. App. 216; Scammon v. Chicago, 25 Ill. 361; Gridley v. Bloomington, 68 id. 47; Peoria v. Simpson, 110 id. 294; Union Brass Co. v. Lindsey, 10 Ill. App. 583; Fisher v. Thirkell, 21 Mich. 1; Lowell v. Spaulding, 4 Cush. 277; Bears . V. Ambler, 9 Pa. St. 193; Harris v. Cohn, 50 Mich. 324.
The landlord is not responsible for the misconduct or neglect of his tenants, even though occasioned by the manner in which the premises were constructed, provided they were capable of being used in a proper manner, whereby no injury could have resulted. Mellen v. Merrill, 126 Mass. 545; Leonard v. Storrer, 115 id. 86; Commonwealth v.Watson, 97 id. 562; Stewart v. Putnam, 127 id. 403; Wolf' v. Kilpatrick, 101 N. Y. 146; Saltenstall v. Banker, 8 Gray, 195.
An excavation underneath the sidewalk in a city, and a scuttle-hole opening thereinto, if properly constructed in the first instance, do not constitute a nuisance per se; nor is the owner or landlord absolutely liable at all times for any injury occasioned by reason of the existence of any such coal or scuttle-hole, or the excavation under
neath. Gridley v. Bloomington, 68 Ill. 47; Peoria v. Simpson, 110 id. 294; Fisher v. Thirkell, 21 Mich. 1; Bears v. Ambler, 9 Pa. St. 193; Boston v. Gray, 144 Mass. 53; Union Brass Co. v. Lindsey, 10 Ill. App. 583; Adams v. Fletcher, 17 R. I. 137.
A landlord or owner who demises a store or basement to a tenant who has the exclusive possession and control thereof is not liable to third persons for injuries occasioned through the defective condition of the premises, where the only ground on which he is sought to be held is that he himself is in possession of other portions of the same building, though not of the portion wherein the injury occurred. Boston v. Gray, 144 Mass. 53; Commonwealth v. Watson, 97 id. 562; Stewart v. Putnam, 127 id. 403; Schroeck v. Reiss, 61 N. Y. Sup. 1054; Jones v. Millsaps, 71 Miss. 10.
SMITH, HELMER, MOULTON & PRICE, for appellee:
The owner of premises abutting on a public way owes a duty to the public to use due care and diligence that any interference of his with the sidewalk shall not result, in injury to the public. Nelson v. Godfrey, 12 Ill. 20; Irvin v. Fowler, 5 Robertson, 482; Chicago v. Robbins, 2 Black, 419; Whalen v. Gloucester, 4 Hun, 22.
This duty continues as long as the owner is benefited by the easement in the public property, whether he is in actual possession or not. Irvin v. Fowler, 5 Robertson, 482; Whalen v. Gloucester, 4 Hun, 22.
The leasing of only a portion of the premises, the remainder being retained in the possession of the landlord or leased to other tenants, does not relieve the landlord from the obligation of using due diligence to keep the sidewalk in repair. Trustees v. Foster, 156 N. Y. 354; Payne v. Irvin, 144 Ill. 482; Bissell v. Lloyd, 100 id. 216; Booth v. Gaither, 58 Ill. App. 263; Kamerer v. Gallagher, 58 id. 561; Trower v. Wehner, 75 id. 655; Wilcox v. Zane, 45 N. E. Rep. 932; Priest v. Nicholls, 116 Mass. 407; Kirby v. Boylston Market Ass. 14 Gray, 249.
Mr. JUSTICE Boggs delivered the opinion of the court:
This is an appeal from the judgment of the Appellate Court for the First District affirming a judgment in the sum of $1000, entered in the circuit court of Cook county in favor of appellee and against the appellant company.
The declaration was in case, and as finally amended contained but a single count. The substance of the allegations of this count was, the appellant company was the owner of a certain building and premises and appurtenances in Cook county, abutting on Randolph street, in Chicago, and was then and there receiving rents, issues and profits from the said building and premises, and that in said street, before and on the day aforesaid, there was a certain hole opening into a certain cellar and vault connected with the said building and premises of the de. fendant, which said cellar and vault, by consent of the said city of Chicago, extended into and under the said public highway, and was connected with and appurtenant to a certain portion of said building and premises occupied by a tenant of the said defendant, from whom the defendant was then and there receiving rent therefor, yet the defendant, well knowing the matters aforesaid, while it was so the owner of the said building and premises, with the appurtenances, and was so receiving the rents, issues and profits thereof, as aforesaid, and while there was such a hole, as aforesaid, there wrong. fully and unjustly permitted the said hole to be and continue, and the saine was then and there so badly, insufficiently and defectively covered, that by means of the premises and for want of a sufficient covering on said hole, the plaintiff, who was then and there passing in and along the said highway, then and there necessarily and unavoidably slipped and fell into said hole, and thereby the right leg of the plaintiff was injured at the knee, and the right knee of the plaintiff was badly bruised, torn and injured, etc. The cause was submitted to a jury
for decision, and judgment was rendered against the appellant company, as before stated.
It appeared the appellee, Cohn, on the 12th day of November, 1893, stepped or fell into a coal-hole in the sidewalk in front of No. 200 West Randolph street, in the city of Chicago, and thereby received the injuries for which the action was brought. The appellant company was then, and had for many years before that been, the owner of the four-story and basement building at the corner of Halsted and West Randolph streets, known as Nos. 200, 202 and 204 West Randolph street. The coalhole in the sidewalk into which the appellee fell opened into a vault under the walk, which was connected with and constituted an appurtenance to the basement of No. 200 of said building. This basement, and the appurtenance thereto, (the vault under the sidewalk into which the coal-hole opened,) was then in the possession of one Henry Wilker, as tenant of the appellant company. Said Wilker had occupied the basement proper as a saloon, and used the vault under the walk for water-closets and to receive and store coal, for about six years. There was evidence tending to show that neither the appellant company nor any of its tenants in the building other than Wilker had access to said vault containing said waterclosets and coal bin, but said Wilker had entire control thereof, the only entrance thereto being from the saloon occupied by him, and that the vault was not appurtenant to any other part of the building.
The first lease to Wilker bore date May 1, 1889, and ran for three years,-to April 30, 1892. The second lease ran from May 1, 1892, to April 30, 1894,-two years. The third lease ran from May 1, 1894, to April 30, 1896. The leases contained covenants to the effect the lessee had received said demised premises in good order and condi. tion, and at the expiration of the time in the leases mentioned, or a sooner determination thereof by forfeiture, he would yield up the said premises to the lessor in as
good a condition as when the same were entered upon by the lessee, loss by fire or inevitable accident or ordinary wear excepted, "and also will keep said premises in good repair during this lease, at his own expense,” and keep said premises in a clean and wholesome condition, in accordance with the ordinances of the city and directions of the health officers. He further agreed that all plumbing, water-pipes, gas-pipes and sewerage should be at the risk of the lessee; that he would make all repairs required to the walls, ceiling, paint, plastering, plumbing work, paper and fixtures belonging to said apartments or used in connection therewith, whenever damage or injury to the same shall have resulted from mis-use or neglect. It was during the period of the latter lease that the appellee slipped, stepped or fell into the coal-hole.
The evidence tended to show that under such lease said Wilker then had exclusive control of the basement and vault in question under the sidewalk into which the coal-hole opened, and that the appellant company provided a janitor for the building but did not occupy any of the rooms or offices in the building, except that the janitor used one room as his office; that he had no duties in connection with the saloon in the basement or with the vault under the sidewalk. There was no proof tending to show the injury was occasioned by any defect in the original construction of the coal-hole or of the cover thereto. It was clearly made to appear that, as between the appellant company and said Wilker, the duty of exercising care to the end the covering of the coal-hole should be kept safe rested on Wilker.
The court, on its own motion, instructed the jury as follows:
"The court instructs the jury that public property cannot be taken or used without compensation, for private use, with or without the consent of the public corporate authorities owning the same, without subjecting the private person or corporation using the same to a