Opinion
Department Two
Appeal from a judgment of the Superior Court of San Joaquin County, and from an order denying a new trial.
COUNSEL:
W. L. Dudley, and W. M. Gibson, for Appellants.
J. C. Campbell, and James H. Budd, for Respondent.
JUDGES: Sharpstein, J. Thornton, J., and McFarland, J., concurred.
OPINION
SHARPSTEIN, Judge
This action is brought to recover damages caused by the falling of an awning and a portion of a brick wall upon the plaintiff while passing along upon a sidewalk under said awning. Defendants were the owners and lessors of the building to which said awning was attached. The case was tried by a jury, which rendered a verdict in favor of the plaintiff for five thousand dollars. Defendants moved for a new trial on several grounds, one of them being "insufficiency of the evidence to justify the verdict." The motion for a new trial was overruled, and from the order overruling it, and the judgment, this appeal is taken.
There was sufficient evidence to justify a finding that the wall to which the awning was attached was not of sufficient strength to support that burden, although it did support it several months. But the evidence is abundantly sufficient to justify a finding that it was carelessness to hang such an awning to a wall in the condition that this wall is proven to have been. And somebody was guilty of carelessness in placing it there. The building, or some part of it, was occupied by tenants of appellants, and it was doubtless at the instance of those tenants that the awning was put up, and it was put up by contractors employed by said tenants. But appellants not only knew of and consented to the erection of the awning, but contributed the lumber for its construction, the tenants providing the iron used in the construction of it, and paying the contractors for the work on it.
In Kalis v. Shattuck , 69 Cal. 593, 58 Am. Rep. 568, this court said: "It is well settled that a landlord is not liable for such consequences unless, -- 1. The nuisance occasioning the injury existed at the time the premises were demised; or 2. The structure was in such a condition that it would be likely to become a nuisance in the ordinary and reasonable use of the same for the purpose for which it was constructed and let, and the landlord failed to repair it (Jessen v. Sweigert , 66 Cal. 182; Rector v. Burkhard, 3 Hill, 193; Mullen v. St. John , 57 N.Y. 569; 15 Am. Rep. 530; Hussey v. Ryan, 11 Cent. Rep. 626; Wood on Nuisances, secs. 295, 676; Wood on Landlord and Tenant, 918); or 3. The landlord authorized or permitted the act which caused it to become a nuisance occasioning the injury."
In this case appellants not only authorized or permitted the act which caused the nuisance occasioning the injury, but contributed to it by furnishing material to be used in creating it. Under the rule above stated, appellants are certainly liable for the consequences of an act to which they contributed.
We perceive no merit in any of the exceptions taken to the rulings of the court during the trial. The damages awarded the plaintiff are not, in our opinion, excessive, and the instruction of the court upon the subject of damages was not erroneous.
Judgment and order affirmed.