
    No. 7957.
    Mrs. Mary Jane Ackerly vs. Patrick Sullivan and Thomas O’Neil.
    A suit for damages resulting from falling over a pleooof soantling which stretched across the banquette of a street, with one end resting on the door sill of a house iu charge of the defendant, cannot be sustained, in absence of proof that defendant or his employees placed the soantling there or knew of its being so placed,
    
      Singleton <& Brovme, for Plaintiff and Appellee:
    The defendant, in occupying or encumbering, or permitting tbeeneumbranceof the banquette with materials, .when they were not necessary to be used in the construction or repair of a house, did so in violation of the city ordinance, and is responsible for all damages resulting from such violation. City Ordinance, No. 127, (1). Thompson on Negligenoe, Vol. I, 340, 343.; Vol. II, 1232.
    It was negligence on the part of tho defendant to put, or leave, or permit a piece of soantling to lie on the banquette, when he had no need therefor.
    The defendant was not lawfully in possession of one-half, or any portion of the banquette, unless it Avns necessary for him to use it. ♦
    The plaintiff had a right to expect the banquette to be free and unencumbered, and she was not obliged to be looking at the banquette in front of her, and it was not contributory negligence in her if she failed to watch the banquette and see tho soantling. Hill vs. Soekonk, 119Mass. 85; Hawks vs. Northampton, 121 Mass. 10; Koch vs. Edgewater, 14 Hun. 504; Clark vs. Dookport, 49 Barbour, 580; Wbitely vs, Pepper, 20 Moak’s Notes, 341; Thompson vs. Bridgewater, 7 Pickering, 187; Woods vs. City of Boston, 121 Mass, 337; 46 Penn. Pep. 316,
    The damages are not unreasonable; on the contrary, they are too small, as her suffering was groat, and the injury permanent; and wo have asked that tho judgment be amended so as to give her $2,500. The law regards rich and poor alike, and whether plaintiff was required to work for her living or dependentupon her son, is notamatter of consideration, Sedgwick on Measure of Damages, (5 Ed.) p. 787. Ibid, p. 648, note 2.
    
      J. O. Nixon, Jr., for Defendant and Appellant:
    To recover in an action cx delicto, plaintiff must show some negligence on the part of defendant, or those for whom he is responsible. 15 An 105; 16 An. 121,'151; 15 An. 448.
    Under the city ordinance the defendant was lawfully in possession of the inside half of tho banquette; if plaintiff went thereou, it was at her own risk. 12 Indiana, 515; li An.712. The plaintiff' was guilty of contributory negligenoe. The damages recovered are excessive.
   The opinion of the Court ivas delivered by

Fenner, J.

The defendant appeals from a judgment rendered against him, upon tlie verdict of a jury, for damages occasioned plaintiff by her tripping and falling over a piece of soantling which rested upon the door-sill of a building and ran across the banquette of the street, unlawfully obstructing the same. The fall broke her wrist, occasioning suffering and other injury. The suit was brought against Sullivan, as owner of the building, and O’Neil, as contractor for.its construction; but, it appearing that O’Neil wa.s in full possession and control of the building and workmen employed therein, the verdict was in favor of Sullivan and against O’Neil only.

Plaintiff alleged that said piece of lumber had been run out of said building bj^ defendants or those in their employ,” and that “ the placing of the same across a frequented thoroughfare by said defendants or their employees, was gross and wilful negligence, and contrary to law,” and rendered defendants responsible for the damages.

There is a complete failure of proof that defendant or any of his employees placed the scantling there or even knew of its being there. On the contrary, the evidence is positive that they did not so place it or know of its being there; that it was not needed in such position for any possible purpose of the work which was being done; that O’Neil left the building at about 12 o’clock in the day, when the men struck off work for dinner; that, at that time, the banquette was clear; and that very shortly after and while the men were at dinner, the accident occurred. How, or by whom, or for what purpose the scantling was placed, is totally unaccounted for.

Certainly, it was an essential element of plaintiff’s cause of action to establish some fault or negligence on the part of defendant or his employees as a condition precedent to his liability for damages.

In this she has completely failed, unless we should hold that the bare fact, that the scantling was there with one end resting upon the door-sill of a house of which defendant was in charge, was sufficient to make him liable, whether or not he or his employees placed it, or knew of its being there. Such a proposition is certainly repugnant to common sense, and we know of, and are referred to, no law or authority sustaining it. It would extend the responsibility of owners or persons in charge of buildings beyond all reason, and would require them to mount guard in front of their houses lest the act of any street gamin might subject them to heavy damages.

The argument that defendant’s employees must or should have known of this obstruction because they were at dinner in the house, twenty feet off and in range of view, at the time when it was placed, comes with little grace from plaintiff, who, being a person of sound sight and unimpaired faculties, ran over the same obstruction, in broad daylight, without seeing it. '

There is no foundation for the verdict or judgment.

It is, therefore, ordered and decreed, that the judgment appealed from against the defendant, Thomas O’Neil, be annulled, avoided and reversed, and that there be judgment in his favor and rejecting plaintiff’s demand, with costs in both Courts.  