- letting property for public use - Definition proximate cause. care required.

7. The proximate cause is the one 4. One letting property for a public that starts the other causes in motion. use must exercise greater care than [See 22 R. C. L. 110.] when the property is let for a private

Landlord and tenant purpose.

purpose of See 16 R. C. L. 1069.1

path. Nuisance — shooting gallery. .

8. That a path beside a shooting 5. A building used as a shooting gal gallery in a public park was not laid lery is not, although containing cracks out by the owner or intended by him through which splinters of bullets for public use is immaterial on the might fly, a nuisance per se, irrespec- question of his liability for injury to tive of the use to which it is put. one on the path by a stray bullet from

put

. [See 20 R. C. L. 418, 419.j

the gallery, if to his knowledge at the Landlord and tenant notice of pos

time he let the property the path was sible injury.

generally used by patrons of the re6. One letting a building for a sort. shooting gallery in a public park is

Appeal refusal of instructions chargeable with notice that it will be

error. used for that purpose, and that if the walls are not properly protected per

9. Failure to instruct upon issues sons in the vicinity will be likely to

not raised by the pleadings is not erbe injured by stray bullets.

ror. [See 16 R. C. L. 1079.]

[See 14 R. C. L. 785.]

APPEAL by defendant from a judgment of the District Court for Salt Lake County (Brown, J.) in favor of plaintiff in an action brought to recover damages for the loss of her son's eye, alleged to have been caused by defendant's negligence. Affirmed.

The facts are stated in the opinion of the court. Messrs. J. H. Hurd, L. L. Bagley, and Am. Rep. 767; Willson v. Treadwell, J. D. Hurd, for appellant:

81 Cal. 58, 22 Pac. 304; Mehr v. McThere is no implied warranty on the Nab, 24 Ont. Rep. 653; Mellen v. Morpart of a landlord that leased prem- rill, 126 Mass. 545, 30 Am. Rep. 695; ises are in a safe condition, or that Fellows v. Gilhuber, 82 Wis. 639, 17 he will keep the premises repaired or L.R.A. 577, 52 N. W. 307; Miles v. in a safe condition.

Janvrin, 196 Mass. 431, 13 L.R.A. Jones, Land. & T. & 574; Doyle v. (N.S.) 378, 124 Am. St. Rep. 575, 82 Union P. R. Co. 147 U. S. 413, 37 L. ed. N. E. 708. 223, 13 Sup. Ct. Rep. 333; Viterbo v. Defendant is not legally responsible Friedlander, 120 U. S. 712, 30 L. ed. or liable in damages for the injury 777, 7 Sup. Ct. Rep. 962; Hamilton v. complained of by the plaintiff. Feary, 8 Ind. App. 615, 52 Am. St. Rep. Peterson v. Bullion-Beck & C. Min. 485, 35 N. E. 48; Moynihan v. Allyn, Co. 33 Utah, 20, 91 Pac. 1095, 14 Ann. 162 Mass. 270, 38 N. E. 497; Harpel v. Cas. 1122; Clifford v. Atlantic Cotton Fall, 63 Minn. 520, 65 N. W. 913.

Mills, 146 Mass. 47, 4 Am. St. Rep. 279, In the absence of an express cove- 15 N. E. 84; Griffin v. Jackson Light nant on the part of the landlord to & P. Co. 92 Am. St. Rep. 496 and note, maintain the premises in repair, it is 122 Mich. 653, 55 L.R.A. 318, 87 N. W. generally held that neither the tenant 888; Coman v. Alles, 198 Mass. 99, 14 nor a guest of the tenant has any right L.R.A.(N.S.) 950, 83 N. E. 1097; Lufof action against the landlord for in- kin v. Zane, 157 Mass. 117, 34 Am. St. juries sustained by reason of defects Rep. 262, 17 L.R.A. 251, 31 N. E. 757; in the premises, where there was no Gardner v. Rhodes, 114 Ga. 929, 57 fraud or misrepresentation on the part L.R.A. 749, 41 S. E. 63; Kalis v. Shatof the landlord leasing the premises. tuck, 69 Cal. 593, 58 Am. Rep. 568, 11

Jones, Land. & T. § 585; McConnell Pac. 346; Ryan v. Wilson, 87 N. Y. 471, v. Lemley, 48 La. Ann. 1433, 34 L.R.A. 41 Am. Rep. 384; McCarthy v. York 609, 55 Am. St. Rep. 319, 20 So. 887; County Sav. Bank, 74 Me. 315, 43 Am. Marshall v. Heard, 59 Tex. 266; Bur- Rep. 591; Taylor, Land & T. & 175; dick v. Cheadle, 26 Ohio St. 393, 20 Jones, Land. & T. 8 605.

(- Utah, -, 180 Pac. 599.) Unless the injury or damage com- permitted for pay to shoot with plained of is in law the proximate and rifles loaded with gunpowder and direct result of the alleged wrongful

leaden bullets at certain targets ; act of the owner of premises, he is not

that said shooting gallery was conresponsible to the one injured thereon

structed by appellant many years while the same are in the exclusive possession and under the control of prior to June 2, 1916, and during all the tenant.

the time since its construction had Anderson v. Baltimore & O. R. Co. been used as a shooting gallery ; 74 W. Va. 17, 51 L.R.A.(N.S.) 888, 81 that the targets used in the shootS. E. 579; Clifford v. Atlantic Cotton ing gallery were constructed of iron, Mills, 146 Mass. 47, 4 Am. St. Rep. and that when bullets would strike 279, 15 N. E. 84; Gardner v. Rhodes, against them they would glance

, 114 Ga. 929, 57 L.R.A. 749, 41 S. E.

from the targets and, unless pre63; Milwaukee & St. P. R. Co. v. Kellogg, 94 U. S. 469, 24 L. ed. 256.

vented by some suitable and proper Messrs. D. H. Thomas and W. R protection, would fly from the tarHutchinson for respondent.

gets and from the building out to Weber, J., delivered the opinion of where patrons of the resort were the court:

passing by or standing near the

shooting gallery, and were liable to Laura Richardson, as guardian ad litem of her son, David Larson,

strike and injure such patrons; that

during all of the time and continueleven years of age, instituted this action in the district court of Salt 1916, there existed immediately east

ously up to and including June 2, Lake county against the defendant for the recovery of damages for the ing gallery was so operated a well

of the building in which the shootloss of the boy's right eye as a result of defendant's alleged negli- been continuously, frequently, and

defined and beaten path, which had gence. The case was tried before the

regularly used, and at the time of court with a jury, and a verdict was rendered in favor of plaintiff, and

the alleged injury was used, by pa

trons of the park in passing by the from the judgment entered thereon defendant appeals.

shooting-gallery building; that apIn his complaint the respondent pellant carelessly and negligently

so constructed the east wall of said alleges that he is an infant, eleven

building of boards and lumber that years of age, and that he sues by his guardian ad litem; that defendant large cracks, holes, and openings re

mained therein, through which bulis a Utah corporation; that on

lets, when they struck against and June 2, 1916, the date of plaintiff's glanced from the targets, would fly alleged injury, and for many years

out to where patrons were passing prior, appellant was the owner of a

along the said path, and that by pleasure resort or park known as "Wandamere" in Salt Lake City,

reason thereof the shooting gallery and that Wandamere was widely

and premises thereabouts became known as a suitable and safe place

and were unsafe and dangerous to for the entertainment of the public

patrons; that all of these conditions and of children; that long before the

were well known to the appellant;

that on April 29, 1916, the appelalleged injury appellant erected a

lant leased the resort to parties who number of buildings at said resort

organized a corporation known as for the use of itself, and its lessees

the Jackson-Sweeten Amusement and concessioners, for the purpose

Company, for the purpose of operatof there conducting attractions and

ing the resort under said lease, and amusements for gain and profit and that with the knowledge and confor the entertainment of the public; sent of appellant the Jackson-Sweetthat appellant had constructed one en Amusement Company entered inof the buildings for the purpose of to possession of the resort under the being used as a shooting gallery,

lery, conditions described, and operated where patrons of the resort were it during the season of 1916; that the lease provided that the lessees that the shooting gallery had been were to have complete possession of operated since 1909; that the buildWandamere park, and should have ing was old even at that time; that the right and privilege of operating the east wall, constructed of boards, and maintaining all of the attrac- had holes, cracks, and openings tions and amusements which were therein, and that this condition had ordinarily and usually there main- existed for some years. One of the tained and operated; that at the boards taken from the wall and intime the lease was executed, and troduced in evidence as an exhibit when the park was taken posses- is literally peppered with bullets and sion of by the Jackson-Sweeten fragments of bullets. On the east Amusement Company, the building of the shooting gallery, north and in which the shooting gallery had south, there was a ditch with runbeen operated was one of the build- ning water next to the wall of the ings of said resort, and the shoot- gallery, and also a passageway, ing gallery, operated as above set which some of the witnesses deforth, was one of the attractions scribed as a well-defined track; and amusements operated by the others speak of it as a well-beaten lessees, and that the unsafe condi- path; all who testified on the subtion of the building continued while ject said that it was often used as in the possession of the lessees as it a passageway, particularly on imhad been for many years before the portant days. By the terms of the lease; that during the season of 1916 lease it was provided that the lessees the resort was. widely advertised expend certain sums of money in by the Jackson-Sweeten Amuse- improvements and repairs, but nothment Company, which induced the ing was said about the shooting galteachers of the public schools of Salt lery. They agreed to keep all the Lake City to hold their "field day" buildings used for attractions in for the public schools of the city at good repair, and at all times to emsaid resort on June 2, 1916, the pu- ploy competent assistance and help pils being given free admission on in maintaining the attractions, and, said date: that respondent was one in case of any accident giving rise of those to whom free admission to an action for personal injury by was given to the resort, and that reason of the operation and mainwhile there on the date mentioned tenance of the park, the lessees he passed along the path referred to, agreed to defend any action brought and that at that time some patron and to hold the lessor harmless. The of the gallery shot at the targets, lessees were also given the right to and a bullet so shot from the rifle sell concessions and give persons the glanced from the target and passed right to operate attractions at the through a hole or crack in the east park. wall of the gallery and struck the The appellant maintains that respondent in his right eye, and as from the evidence it is plain that a result of the accident his eye was the building or structure used as a destroyed and its removal became shooting gallery was not in any necessary.

sense inherently dangerous, and Appellant, in its answer, admitted that whatever danger, if any, there the age of the respondent, the cor- was to patrons, arose wholly from porate existence of the appellant, its the negligence of the lessees and ownership of Wandamere park, and their sublessees in installing and that it executed the written lease operating an apparatus for a shootset out in the complaint. All the ing booth, and from their neglect to other allegations of the complaint take any reasonable precaution to were denied in the answer.

prevent patrons from coming in The material allegations of the close proximity to the targets complaint were supported by sub- placed and used in said gallery. As stantial evidence. It was shown to the law, counsel for appellant as(- Utah, 180 Pac. 599.) sert that the general rule is that v. Zane, 157 Mass. 117, 17 L.R.A. there is no implied warranty on the 251, 34 Am. St. Rep. 262, 31 N. E. part of a landlord that leased prem- 757; Gardner v. Rhodes, 114 Ga. ises are in a safe condition, or that 929, 57 L.R.A. 749, 41 S. E. 63; Kalis he will keep the premises repaired v. Shattuck, 69 Cal, 593, 58 Am. or in a safe condition; and that, in Rep. 568, 11 Pac. 346; Ryan v. Wilthe absence of an express covenant son, 87 N. Y. 471, 41 Am. Rep. 384; on the part of the landlord to main- McCarthy v. York County Sav. tain the premises in repair, it is Bank, 74 Me. 315, 43 Am. Rep. 591. generally held that neither the ten- Appellant relies on the case of ant nor a guest of the tenant has Peterson v. Bullion-Beck & C. Min. any right of action against the land- Co. 33 Utah 20, 91 Pac. 1095, 14 lord for injuries sustained by reason Ann. Cas 1122, and specially refers of defects in the premises where to an excerpt quoted from Taylor, there was no fraud or misrepresen- Land. & Tenant, by Mr. Justice tation on the part of the landlord Frick in his concurring opinion, as leasing the premises; that the over- a correct statement of the law apwhelming weight of authority is to plicable to cases like the one at bar. the effect that, where property at No doubt the law is properly reflectthe time of the demise is not a nui- ed in the excerpt quoted from Taysance, and an injury happens by lor, but the quotation has no applisome act of the tenant or while the cation to this case for the reason tenant has the entire possession or that here the shooting gallery buildcontrol of the premises, the owner ing, at the time it was leased by the is not liable. The following authori. appellant, was in such a condition ties are cited by appellant and sup- that it constituted a quiescent nuiport its contention: Jones, Land. & sance.

From the undisputed evi. T. $ 574; Doyle v. Union P. R. Co. dence it is manifest that by using 147 U. S. 413, 37 L. ed. 223, 13 Sup. the building which was intended for Ct. Rep. 333; Hamilton v. Feary, 8 use as a shooting gallery and which Ind. App. 615, 52 Am. St. Rep. 485, was leased for that 35 N. E. 48; Moynihan v. Allyn, 162 purpose, in the con- Landlord and

tenant-letting Mass. 270, 38 N E. 497; Harpel v, dition it was in Fall , 63 Minn. 520, 65 N. W. 913; when leased, the lery liability

for injury to Marshall v. Heard, 59 Tex. 266; Bur- projectiles in pass- panner-by. dick v. Cheadle, 26 Ohio St. 393, 20 ing from the guns Am. Rep. 767; Robbins v. Jones, 15 would necessarily be deflected from C. B. N. S. 221, 143 Eng. Reprint, the target through the openings in 768, 33 L. J. C. P N. S. 1, 10 Jur. the wall of the building, and would N. S. 239, 9 L. T. N. S. 523, 12 Week. thus probably come in contact with Rep. 248; Mellen v. Morrill, 126 a person passing the building along Mass. 545, 30 Am. Rep. 695; Fel- the passageway and injure him. lows v. Gilhuber, 82 Wis. 639, 17 The injury inflicted might be trivial, L.R.A. 577, 52 N. W. 307; Miles v. or it might, as in the case at bar, be Janvrin, 196 Mass. 431, 13 L.R.A. quite serious. It was the unsafe (N.S.) 378, 124 Am. St. Rep. 575, condition of the building as leased, 82 N. E. 708 ; 24 Cyc. 1092; Peter- however, which would expose the son v. Bullion-Beck & C. Min. Co. 33 passer-by to danger, and not the Utah, 20, 91 Pac. 1095, 14 Ann. Cas. sole act of the tenant, for the rea1122, Clifford v. Atlantic Mills, 146 son that, if the tenant used the Mass. 47, 4 Am. St. Rep. 279, 15 building at all as a shooting gallery N. E. 84; Griffin v. Jackson Light in the condition in which it was, the & P. Co. 92 Am. St. Rep. 496, and danger would certainly be constantnote C. p. 524 (128 Mich 653, 55 ly imminent. The principle upon L.R.A. 318, 87 N. W. 888); Coman which the Peterson Case rests is V. Alles, 198 Mass. 99, 14 L.R.A. also illustrated and applied by this (N.S.) 950, 83 N. E. 1097; Lufkin court in Pembroke Stationery Co. v.

shooting kal

Rogers, 41 Utah, 411, 125 Pac. 866. with a nuisance is that he created The question here is not such as the nuisance, and will be presumed was involved in the Peterson Case. to have intended the continuance Here the evidence is that for years thereof, or that he acquired title prior to the execution of the lease with an existing nuisance and knowby appellant the shooting gallery as ingly leased them in that condition. operated had been a dangerous nui- In either case the act of leasing with sance. The appellant must have the nuisance is held to raise the preknown this fact. It also knew of the sumption that he intended the nuipassageway or path, and knew that

sance to be continued. Prior to and it was used by the patrons of the at the time of the lease, it was the resort, and that every person using duty of the lessor to put an end to it was in danger from flying bullets the nuisance. If he fails to do this, or parts of bullets which often and leases the premises with the glanced from the targets and, when nuisance on them, he may be not embedded in the walls, passed deemed, and is deemed, to authorize through the cracks and holes there- the continuance of the nuisance, in. For some seven or eight years and is therefore liable for the conat least, as shown by the evidence, sequences of such continuance. this building had been used in that Whether, therefore, the defect is condition as a shooting gallery. one of original construction, or There was no reason to think that arises from a failure to repair, or the lessees would use it for any oth- from the maintenance on the premer purpose. Any man of ordinary ises of any condition endangering intelligence would know that the the health or safety of strangers, tenants would probably continue its whatever its nature, if it continues use as a shooting gallery, and, under a nuisance, the lessor will be responthe circumstances disclosed by the sible for its consequences if he leases evidence, it may be fairly said that the premises with the nuisance upa continuance of the manner in on them, and thus authorizes its which it had been used was contem- continuance." plated by the parties to the lease. And this author further states, in

In 16 R. C. L. § 594, p. 1076, it is $ 598: “It is not always necessary said: “It is the well-settled rule in order that the landlord may be that the landlord is properly charge- held liable for injuries resulting able with liability to a stranger from a nuisance on the leased premwhere the cause of injury to the lat- ises that the cause of the injury be ter is a nuisance existing on the in and of itself a nuisance at the premises at the time of the demise. time of the lease. Leases are made No person can create or maintain a with a view to the use of the premnuisance upon his premises and es- ises leased, and if the injury to the cape liability for the injury occa- person or property of a stranger is sioned by it to third persons. Nor the result of the reasonable, ordican a lessor so create a nuisance and nary, and contemplated manner of then escape liability for the conse- use of the premises, the lessor will quences by leasing the premises to be responsible therefor, although a tenant. Nor is it material that the unused, and as they stood at the negligence of the lessee contributed time of the demise, the premises to the injury; that may render the were not, of themselves, a nuisance." lessee also liable, but it cannot ex- The weight of authority is to the empt the lessor from liability. In- effect that if an owner creates a deed, the nuisance may be merely dangerous nuisance on his land he passive until some agency of the cannot avoid liabil

-letting lessee intervenes, and the lessor will ity to a person in- nuisancestill be liable. The theory upon

jured thereby by

liability. which the landlord is held to be lia- leasing to another his land, with the ble where the premises are leased nuisance thereon,

nuisance thereon, especially in a