
    Mary McKenna v. The Martin and William H. Nixon Paper Company, Appellant.
    
      Negligence — Tenant—Liability for weak walls.
    
    Where tenants are in the occupancy of a building which had been built for a paper warehouse and used as such for more than twenty years, they are not liable for a collapse of the building, in the absence of evidence that it was not suitable for the purpose, or that they had notice of defects, or affirmative evidence of overloading. Proof of the collapse of a building is not of itself proof of negligence.
    
      Notice — Foreman.
    Notice to the mere foreman of a paper conyiany corporation is not a substitute for notice to the officers of said corporation who were in personal charge and direction of the place.
    Argued March 24, 1896.
    Appeal, No. 215, July T., 1895, by defendant, from judgment of C. P. No. 2, Phila. Co., March T., 1893, No. 341, on verdict for plaintiff.
    Before Stebbett, C. J., Gbeen, McCollum, Mitchell and Dean, JJ.
    Reversed.
    Trespass to recover damages for death of plaintiff’s husband. Before Pennypackeb, J.
    It appeared on the trial that the defendant on August 20, 1888, leased a four story building Nos. 515, 517, Commerce street, Phila., for the term of five years for the purpose of a paper warehouse. On the afternoon of January 16, 1893, the building suddenly fell in and John McKenna, the plaintiff’s husband, who was a laborer in the employ of the defendant, was killed. Others were killed in the same accident, and the president and treasurer of the defendant were imprisoned in the ruins, and they had to be dug out by firemen.
    Other facts sufficiently appear in the opinion of the Supreme Court.
    Verdict for $2,000 for plaintiff and judgment thereon. Defendant appealed.
    
      Error assigned among others was (6) declining the defendant’s sixth point “ that under all the evidence the verdict should be for the defendant.”
    
      Theodore E. Jenlcins, with him Gravin W. Hart, for appellant.
    There is no proof that the defective construction was known to the defendant nor that it was so obvious that the defendant should have known it. In such case a tenant is not liable: Shearman & Redfield on Negligence, secs. 189, 712, 724; Godley v. Hagerty, 20 Pa. 387 ; Walden v. Finch, 70 Pa. 460; Allison Co. v. McCormick, 118 Pa. 519; Railroad Co. v. Hughes, 119 Pa. 302; Mensch v. R. R., 150 Pa. 598; Bradbury v. Coal Co., 157 Pa. 231.
    The owner and not the tenant is liable for an injury happening while the tenant is using the building with such care as a prudent man would use such a building: Carson v. Godley, 26 Pa. 111.
    A foreman is a fellow workman: Lineoski v. Coal Co., 157 Pa. 153; Coal Co. v. Jones, 86 Pa. 432; R. R. v. Bell, 112 Pa. 400 ; Coke Co. v. Roby, 115 Pa. 364; McGinley v. Levering, 152 Pa. 366.
    
      Wm. W. Wiltbank, with him Chas. A. Chase, for appellee.
    An employer is bound to exercise reasonable protection against injury to his employees : Wagner v. Jayne Chemical Co., 147 Pa. 479; Tissue v. R. R. Co., 112 Pa. 91; Rummell v. Dilworth, 111 Pa. 343 ; Clapp v. R. R. Co., 36 Minn. 6; Smith v. Car Works, 60 Mich. 508 ; Cook v. Ry. Co., 34 Minn. 45; Russell v. Ry. Co., 32 Minn. 230; Wharton on Negligence, sec. 791; Edwards v. Halinder, Poph. 46; Walden v. Finch, 70 Pa. 
      460; Wood’s Master and Servant, secs. 334, 336, 343, 349, 353 : Giles v. Diamond State Iron Co., 8 Atl. Rep. 371.
    July 15, 1896:
   Opinion by

Mr. Justice Mitchell,

We fail to find any evidence of negligence on the part of' defendants. The building was rented by them as a paper warehouse', for which purpose it had been built and used for more than twenty years. It was not shown that they had any reason to suppose it was not suitable to the purpose, and they cannot, be chargeable therefore with negligence without notice of defect, or affirmative evidence of overloading.

The only testimony even tending to show notice was that of' Beetem, the builder, who in the summer of 1892 was sent for-to examine the front wall. He found that there was a break in the front pier where the weight above had cracked the wall away from the end of the iron girder. Acting for the owner,, not the defendants, he tore down the pier and rebuilt it so that it was stronger than before. While doing this work he says he-noticed some small cracks in the bricks under the iron pillars-resting on the division wall between the two houses. This was. the wall which subsequently gave way and caused the accident. But Beetem though an experienced builder does not seem to-have considered the cracks any indication of danger, for he did not look at the other side of the wall to see if the cracks went through it, and he made no report either to his employers or to-defendants that the division wall needed strengthening. He-testifies that the break in the front pier had “ no material effect ” on the columns which afterwards gave way. All that he says, about notice is that he told Marker, the defendant’s foreman, that “ he had the building overloaded and would have to stop-it.” He does not say that he referred to the division wall, or-that he even told Marker about the cracks in it, and his remark appears to have been quite as much an explanation of the break in the front pier, as a caution in regard to the rest of the building. But even if it were the latter Marker was a mere foreman and there is nothing to make notice to him a substitute for notice-to the officers of defendant, who were in personal charge and direction of the place.

Nor is there any evidence of negligent overloading. Of course-the building was loaded beyond its real capacity as the collapse showed, but that is not of itself proof of negligence. As already said tbe building was erected or altered in 1870 for use as a paper warehouse, and had been in use as such from that date. There was not only no evidence that it was loaded by defendants beyond the customary and expected capacity of a paper warehouse, but it was shown that defendants’ stock which was paper bags was not so heavy as ordinary paper stock, and the testimony of Bayle, the bookkeeper, called by plaintiff showed affirmatively that the load on the day of the accident was materially less than it had been at other times for a year previous.

On the whole case there was no sufficient evidence of negligence and the jury should have been directed to find for the defendant.

Judgment reversed.  